State v. Eckley
| Citation | 579 P.2d 291,34 Or.App. 563 |
| Parties | STATE of Oregon, Respondent, v. Clarence Lavern ECKLEY, Appellant. |
| Decision Date | 30 May 1978 |
| Court | Court of Appeals of Oregon |
Thomas J. Crabtree, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem.
William F. Nessly, Jr., Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were James A. Redden, Atty. Gen., and Al J. Laue, Sol. Gen., Salem.
Defendant appeals from an order revoking his probation and executing a previously-imposed sentence. The issue is whether the double jeopardy clauses of the state and federal constitutions 1 apply to probation revocation proceedings.
In May, 1977, defendant pleaded guilty to unauthorized use of a motor vehicle. He was sentenced to the custody of the Corrections Division for five years, but execution of the sentence was suspended and he was placed on probation. Thereafter, defendant was charged with violating the terms of his probation by unlawfully possessing and controlling a concealable weapon. After a hearing to show cause why probation should not be revoked, the court dismissed the proceeding because the state had not proved the alleged violation.
On the day after the dismissal, the state initiated a second probation revocation proceeding, based on defendant's conviction of being an ex-convict in possession of a firearm, ORS 166.270, arising from the same incident that was alleged in the first revocation proceeding. Defendant moved for dismissal of the second proceeding on grounds of former jeopardy. The court denied the motion, revoked defendant's probation, and ordered execution of the sentence that had been imposed for the conviction of unauthorized use of a motor vehicle.
Article I, Section 12 of the Oregon Constitution provides:
"No person shall be put in jeopardy twice for the same offence (sic) * * *."
Also, ORS 131.515(1) and (2), which purport to codify Oregon's double jeopardy rules, 2 provide "Except as provided in ORS 131.525 and 131.535:
The question in this appeal is whether a probation revocation hearing places a probationer in "jeopardy" or constitutes a "prosecution" for an "offense." We conclude that it does not.
The Double Jeopardy Clause protects defendants from more than one criminal prosecution for the same offense. It also applies to proceedings that are essentially criminal in that they result in a penal sanction. See, Breed v. Jones, 421 U.S. 519, 528, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975) ().
Due process is a flexible concept to be applied with appropriate regard for the personal rights at stake and the nature of the proceeding. The right to notice and counsel, for example, must be afforded in a probation revocation hearing because facts are to be determined, litigative skills are desirable, and liberty may be affected. Other protections, however, are not necessarily applicable, e. g., the requirement of proof beyond reasonable doubt. State v. Fortier, 20 Or.App. 613, 616-17, 533 P.2d 187 rev. den. (1975). The very nature of the proceeding makes application of double jeopardy protection inappropriate. 3
The function of the proceeding is not to punish defendant for a new crime. Indeed, acquittal of a new crime does not bar probation revocation based on that crime, State v. Fortier, and the authority to revoke does not depend upon whether defendant's probationary conduct is criminal. Rather, the function is to determine whether to impose or execute a sentence for the offense of which defendant has already been convicted and for which probation was granted. State v. Montgomery, 3 Or.App. 555, 558, 474 P.2d 780 rev. den. (1970). The initial decision to place defendant on probation was a decision to forego complete denial of liberty by incarceration in favor of a judicially-supervised period of restricted liberty in the hope that the purposes of rehabilitation of defendant and the protection of the public can...
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State v. Thompson
...by the prison disciplinary board and then by a court for an escape or attempted escape from official detention. Accord State v. Eckley, 34 Or.App. 563, 579 P.2d 291 (1978) (probation revocation hearing); State ex rel. Vandenberg v. Vandenberg, 48 Or.App. 609, 617 P.2d 675 (1980) rev. den. 2......
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State v. Williams
...(1980); People v. Buelow, 94 Mich.App. 46, 287 N.W.2d 9 (1979); Davenport v. State, 574 S.W.2d 73 (Tex.Crim.App.1978); State v. Eckley, 34 Or.App. 563, 579 P.2d 291 (1978). However, this does not end our inquiry, for as pointed out previously, the defenses of double jeopardy and collateral ......
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...of the duty of ... supervision of [conditional] liberty.’ ” Oppelt, 184 Mont. at 53-54, 601 P.2d at 398 (quoting State v. Eckley, 34 Or.App. 563, 579 P.2d 291, 293 (1978)); see also Lange, 237 Mont. at 489, 775 P.2d at 215 (a revocation hearing is not a criminal trial; rather, it is simply ......
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