State v. Maricich
| Decision Date | 04 April 1990 |
| Citation | 101 Or.App. 212,789 P.2d 701 |
| Court | Oregon Court of Appeals |
| Parties | STATE of Oregon, Appellant, v. Bradford Jay MARICICH, Respondent. C 88-11-37800; CA A60741. |
Meg Reeves, Asst. Atty. Gen., Salem, argued the cause for appellant. With her on the brief were Dave Frohnmayer, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.
Anthony David Bornstein, Metropolitan Public Defenders, Portland, argued the cause and submitted the brief for respondent.
Before BUTTLER, P.J., and WARREN and ROSSMAN, JJ.
Defendant was charged with escape in the second degree. ORS 162.155. Before trial, he moved to dismiss the charge on the ground of former jeopardy, arguing that his probation on an earlier conviction had been revoked for the same alleged conduct. The trial court granted the motion, and the state appeals. We reverse.
The laws governing double jeopardy protect defendants from more than one criminal prosecution for the same criminal offense. Article I, section 12, of the Oregon Constitution provides that "[n]o person shall be put in jeopardy twice for the same offence [sic] * * *." ORS 131.515 provides:
The Former Jeopardy Clause and the statute, however, do not "prevent a person on probation who commits illegal acts from being responsible for those acts through both criminal prosecution and probation revocation." State v. Montgomery, 3 Or.App. 555, 557, 474 P.2d 780 (1970). The reason is that a probation revocation proceeding is not a criminal prosecution.
State v. Eckley, 34 Or.App. 563, 567, 579 P.2d 291 (1978). 1
Revocation of defendant's probation, therefore, does not prevent his being prosecuted for escape for the same conduct. Accordingly, the trial court improperly granted his motion to dismiss.
Reversed and remanded.
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Lucio F.T., Matter of
...probation and his trial on new charges, and do not constitute double punishment for the same offense. See State v. Maricich, 101 Or.App. 212, 789 P.2d 701, 702 (1990); cf. James G. Carr, The Effect of the Double Jeopardy Clause on Juvenile Proceedings, 6 U.Tol.L.Rev. 1, 8 (1974) (outlining ......
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...153 (1995); In re Lucio F.T., 119 N.M. 76, 888 P.2d 958 (App.1994); Roberts v. State, 644 So.2d 81 (Fla.1994); State v. Maricich, 101 Or.App. 212, 789 P.2d 701 (1990); State v. Quarles, 13 Kan.App.2d 51, 761 P.2d 317 (1988). Cf. People v. Hrapski, 718 P.2d 1050 (Colo.1986) (Colorado's habit......
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