The opinion
BRETT, Presiding Judge,
specially concurring:
I specially concur in the majority opinion for the reason that the appellant waived his jeopardy claim by not moving to consolidate the charges at the outset of this litigation. Instead, he moved for the State to elect which charge to prosecute, and, following his conviction for Larceny of an Automobile, he was tried for the Escape from Prison, at which trial he repeatedly claimed double jeopardy. His theory that the two charges are one and the same is ill-founded.
In Johnson v. State, 611 P.2d 1137 (Okl.Cr.1980), this Court held that the claim of double jeopardy had been waived. Charges of murder in the second degree and kidnapping for the purpose of extortion arose out of the same transaction and were brought in separate counties. The appellant successfully maintained a motion for continuance on the murder charges pending the outcome of the kidnapping trial. He raised jeopardy for the first time at the outset of the murder trial, following his conviction of kidnapping. This Court found that, while the appellant could be punished separately for murder in the second degree and kidnapping for the purpose of extortion, both crimes should have been adjudicated in a single trial. The failure of the appellant to seek that remedy resulted in a loss of this right.
In our discussion in. Johnson v. State, supra, this Court considered the problem of those cases in which there are multiple trials for crimes which are legally distinct but which are part of a single criminal episode or transaction. The opinion reads:
In dealing with these cases, an appellate court must consider both aspects of double jeopardy . . . More than one trial for a single offense and more than one punishment for a single offense. We believe that the protection against multiplicity of trials is best advanced by application of the ‘same transaction test.’ However, the protection against multiplicity of punishments is a separate and independent question; and even where the ‘same transaction test’ mandates a single trial, application of the ‘same evidence test’ could result in a holding that a defendant could be punished separately for each of the offenses involved .... In taking this course, we do nothing more than elevate the distinct purposes of the Double Jeopardy Doctrine to the equal dignity and reverence each deserves. Johnson, supra, at 1144 .
Had the appellant sought a consolidation of these charges for purposes of trial, this appeal would have merit.