Argued and submitted November 5, 2012; resubmitted January 7, 2013.
On review from the Court of Appeals, CC F16027, CA A143237.[*]
Susan Fair Drake, Senior Deputy Public Defender, Salem, argued the cause and filed the briefs for petitioner on review. With her on the briefs was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Rebecca M. Johansen, Assistant Attorney General, Salem, argued the cause and filed the brief for respondent on review. With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Before Balmer, Chief Justice, and Kistler, Walters, Linder, Landau, and Baldwin, Justices. [**]
The petition for review is dismissed as improvidently allowed.
WALTERS, J., concurring.
This court allowed review in this criminal case to decide whether defendant's prosecution for possession of a controlled substance was barred under Oregon's former jeopardy statute -- ORS 131.515(2). Defendant originally was charged in the same indictment with driving under the influence of intoxicants (DUII), reckless driving, and two counts of possession of a controlled substance. When defendant agreed to plead guilty to DUII and reckless driving, the possession charges were dismissed with defendant's agreement that the state could refile them if defendant violated the terms of his probation. However, defendant reserved his right to raise a double jeopardy objection to such a subsequent prosecution. Defendant did later violate the terms of his probation, and the state refiled one of the possession charges. Thus, what was originally intended as one consolidated prosecution on all charges proceeded as two successive prosecutions. This court has determined that those facts are unlikely to arise again in the future and that review was improvidently allowed. I concur in that decision. However, having thought about the issues, I write to alert the bench and bar to the correct standard for deciding when joinder is compulsory under ORS 131.515(2) and to raise an issue about the application of that standard for the legislature's consideration.
Stated simply, the question that this case presents is whether a defendant can be successively prosecuted for DUII and drug possession when the driving and the possession occur simultaneously. The statute that controls the answer to that question is ORS 131.515(2), which 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."
In this case, the trial court concluded that defendant's alleged drug possession was not part of the same "criminal episode" as his DUII, because "the elements are not the same." In resting its ruling on that reasoning, the trial court erred.
In State v. Brown, 262 Or 442, 497 P.2d 1191 (1972), this court considered whether possession of a concealed weapon and felon in possession of a firearm were the same "offense" for purposes of the constitutional double jeopardy provision -- Article I, section 12, of the Oregon Constitution. The court held that, even though the two crimes had different elements, they constituted the same "offense." Thus, the fact that two charges have different elements does not determine whether they constitute the same "offense." ORS 131.515(2) assumes that a defendant has been charged with at least two offenses and precludes separate prosecution, not when the elements or offense are the same, but when separate offenses are based on the same "criminal episode." Consequently, for purposes of ORS ...