State v. Martin

594 P.2d 1276, 40 Or. App. 217, 1979 Ore. App. LEXIS 2114

• Court: Court of Appeals of Oregon
• Decided: May 14, 1979
• Docket: No. C 77-04-05663, CA 11239
• Status: Published

Opinions

TANZER, J.

The state appeals a trial court order dismissing Counts II and III of an indictment on grounds of former jeopardy.

Defendant was initially indicted for and convicted of conspiracy to commit robbery in the first degree. He moved for and was granted a new trial based upon newly discovered evidence, pursuant to ORS 17.610(4). Upon reindictment, defendant was charged with two additional counts arising out of the same transaction as the first: Count II, robbery in the first degree and Count III, theft in the first degree. Defendant’s motion to dismiss the additional counts was granted on the ground that trying defendant for crimes not charged in the first indictment would violate his protection against former jeopardy under the Oregon Constitution, Article I, section 12, and the Fifth and Fourteenth Amendments to the United States Constitution,¹ as construed in State v. Brown, 262 Or 442, 497 P2d 1191 (1972).

The issues presented are: (1) whether the state may appeal a trial court order dismissing part of an accusatory instrument; and (2) whether upon reindictment after defendant is granted a new trial, the state may prosecute defendant for other charges arising out of the same act or transaction.

JURISDICTION

The state asserts that it is appealing under ORS 138.060(1), which provides:

"The state may take an appeal from the circuit court or the district court to the Court of Appeals from:

"(1) An order made prior to trial dismissing or setting aside the accusatory instrument.”

Defendant argues that the order of dismissal could not be properly appealed under that provision because the trial court dismissed only two of the three counts of the indictment.

Where an indictment charges one offense, dismissal is appealable under ORS 138.060(1). Where several charges allegedly arose out of the same act or transaction, the state may either join the charges as separate counts of one indictment or it may indict separately on each charge, subject to a court order consolidating the indictments. ORS 132.560.² Whether joined or severed, however, each count in the indictment constitutes one offense which could have constituted the sole charge of an accusatory instrument against defendant and would be appealable. It would be illogical to permit the state to appeal dismissal of a charge if it were brought as a separate indictment but not if it were brought as a count of one indictment. We hold that the state may appeal the dismissal of separate counts of an indictment.

DOUBLE JEOPARDY

The second issue is whether the state may prosecute defendant for additional charges arising out of the same act or transaction after a conviction has been set aside on defendant’s motion for new trial.

It is well established that an order for new trial based upon the defendant’s motion nullifies the jeopardy which attached as a result of the trial. In State v. Jones, 240 Or 546, 402 P2d 738 (1965), the defendant’s first trial for forgery was terminated upon defendant’s motion to dismiss based upon a variance between the indictment and the proof. The Supreme Court held that a subsequent conviction for obtaining property under false pretenses arising from the same facts did not violate the defendant’s constitutional privilege against double jeopardy because jeopardy had been annulled by the granting of defendant’s motion in the first case. Therefore, the Supreme Court held, the proceedings stood "upon the same footing as if the defendant had never been in jeopardy,” 240 Or at 548. Defendant’s vacated conviction in this case is equally a nullity.

We applied Jones in State v. Gaylor, 19 Or App 154, 527 P2d 4 (1974). There, a conviction for negligent homicide was reversed on appeal. On remand, defendant was indicted for the same crime plus an additional count of negligent homicide of another victim. We cited United States Supreme Court cases and State v. Jones for the proposition that the reversal of the first conviction at defendant’s request rendered the first conviction a nullity for double jeopardy proposes which had no restricting effect upon subsequent proceedings. This case is analogous to Gaylor.

The former jeopardy rules of State v. Brown are not to the contrary because they apply only where there has been former jeopardy. Here there is none. Where the conviction is set aside upon the defendant’s motion, the law is clear that the nullified proceeding does not constitute former jeopardy and bar subsequent proceedings. In State v. Ayers, 16 Or App 655, 663, 520 P2d 449 rev den (1974), we acknowledged that State v. Jones remained good law despite the intermediate decisions in State v. Brown and State v. Fair, 263 Or 383, 502 P2d 1150 (1972). We have no reason to disturb that holding.

As in Jones and Gaylor, the trial in this case was nullified on defendant’s motion. It therefore no longer constitutes former jeopardy and there is nothing to prohibit the state from reframing its charges. This is not to hold that there is no restriction upon subsequent proceedings after a conviction has been set aside. For example, if the nullified conviction is for a lesser offense, the conviction operates as an acquittal of any greater offense in which the lesser offense is included. State v. Steeves, 29 Or 85, 43 P 947 (1896); State v. Cloutier, 33 Or App 121, 575 P2d 996 rev allowed (1978). In such a case the acquittal of the greater offense is not nullified and would bar a subsequent prosecution for the greater offense. Also, by an extension of the nonconstitutional procedural policy of State v. Turner, 247 Or 301, 315, 429 P2d 565 (1967), the defendant’s punishment cannot be increased if he is convicted again of offenses arising from the same act or transaction. The prior acquittal problem is not presented by this case and we need not anticipate the resentencing problem.

The order of dismissal is reversed and the case remanded for trial.

1 Article I, section 12, of the Oregon Constitution provides:

"No person shall be put in jeopardy twice for the same offence [sic], nor be compelled in any criminal prosecution to testify against himself.”

2 ORS 132.560 provides:

"The indictment must charge but one crime, and in one form only, except that:

"(1) Where the crime may be committed by the use of different means, the indictment may allege the means in the alternative.

"(2) When there are several charges against any person or persons for the same act or transaction, instead of having several indictments, the whole may be joined in one indictment in several counts; and if two or more indictments are found in such cases, the court may order them to be consolidated.”