The opinion
BUTTLER, J.,
dissenting.
It is conceded, as the majority recognizes, that the prosecutor had knowledge of both charges and that they could have been joined in the same court. The only question, as I see it, is whether the two offenses are "based upon the same criminal episode” (ORS 131.515(2)) as defined in ORS 131.505(4). 1 Because I conclude that they were, I would reverse, and therefore dissent.
Defendant and his wife were separated and in the process of dissolving their marriage; his wife had temporary custody of their children. On the night in question, *757 defendant broke into his wife’s house, which she shared with her mother; while there, defendant drank a six-pack of beer; when he heard his mother-in-law moving about, he made a quick exit through a window, got in his car and drove away hastily. About four miles from the house he was stopped and arrested for driving under the influence of intoxicating liquor. There were beer bottles in defendant’s vehicle, and also in his wife’s yard. During questioning at the police station, defendant made incriminating statements concerning his entry of his wife’s house.
Defendant was charged both with burglary in the first degree and with DUII. The DUII charge came to trial first; defendant testified during trial and was acquitted.
Thereafter, defendant’s motion to dismiss the burglary charge was denied. At the trial on that offense, defendant’s testimony given during his defense of the DUH charge was admitted in evidence and he was convicted.
ORS 131.515(2) provides:
"No person shall be separately prosecuted for two or more offenses based upon the same criminal episode, if the several offenses are reasonably known to the appropriate prosecutor at the time of commencement of the first prosecution and establish proper venue in a single court.”
The phrase "criminal episode” is defined in ORS 131.505(4):
" 'Criminal episode’ means continuous and uninterrupted conduct that establishes at least one offense and is so joined in time, place and circumstances that such conduct is directed to the accomplishment of a single criminal objective.”
It seems to me that defendant’s getaway from the scene of the burglary comes squarely within the definition of "criminal episode,” and that it was incumbant upon the state to join the two charges for trial, in default of which the defendant was entitled to dismissal of the second charge. See State v. Knowles, 289 Or 803 , 618 P2d 1245 (1980). It is not for us to judge the wisdom of the legislature’s requirement of joinder 2 in these circumstances. The legislative assembly apparently approved of *758 the analysis stated in State v. Brown, 262 Or 442 , 497 P2d 1191 (1972). In Brown , the court said:
"* * * We are aware that compulsory joinder of criminal charges raises many problems that would be better solved by the legislature than by the courts. We are concerned, however, with the minimum protection which our constitution requires, and we believe that the double jeopardy guarantee demands a realistic limitation on successive prosecutions by the state. A prosecutor who is or should be aware of the facts ought not to be able, in his sole discretion, to subject a defendant to a series of trials for violations which are part of the same course of conduct and which could be tried together.” 262 Or at 457 .
There is no question here that the two offenses have different elements, require different proof and are directed to a different harm or evil. But that is not the question, even though we may think it ought to be. Perhaps the result which it seems to me the statute dictates does not make much sense. Perhaps the legislature did not intend such a result. On the other hand, the fact that defendant’s testimony in the DUII case was admitted in evidence in the burglary case (which would seem impermissible if the two offenses were not closely related) may be the kind of concern which persuaded the legislature to require joinder. Harassment, albeit ill defined, is one of the concerns.
I do not mean to suggest that the prosecutor intentionally brought to trial the DUII charge in the hopes that something might develop which would help the state in the prosecution of the burglary charge. Nonetheless, if the majority are correct, there is nothing to prevent that kind of manipulation of the process.
For the foregoing reasons, I respectfully dissent.
Because I conclude that the statutes control, there is no necessity to consider the constitutional aspects of former jeopardy, Article I, § 12, Oregon Constitution, as construed in State v. Brown, 262 Or 442 , 497 P2d 1191 (1972).
I do not venture to distinguish permissive joinder of charges under ORS 132.560(2) from compulsory joinder under the statute here involved. However, *758 reason strongly suggests that the criteria for permissive joinder should be less stringent than those for compulsory joinder. If they are the same, one is meaningless; if permissive is more stringent, the situation is impossible. But see State v. Fitzgerald, 267 Or 266 , 516 P2d 1280 (1973); State v. Boyd, 271 Or 558 , 533 P2d 795 (1975). The majority rely, in part, on Fitzgerald , which is a permissive joinder case in which the court totally ignored compulsory joinder. As if to clarify matters, the court in Boyd , a compulsory joinder case, seems to equate the criteria for the two types of joinder. Accordingly, the majority’s confusion must be excused.