State v. Maricich

789 P.2d 701 (1990)

101 Or.App. 212

STATE of Oregon, Appellant, v. Bradford Jay MARICICH, Respondent.

C 88-11-37800; CA A60741.

Court of Appeals of Oregon.

Argued and Submitted February 21, 1990.

Decided April 4, 1990.

*702 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.

ROSSMAN, Judge.

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moved to dismiss the charge on the ground of former jeopardy, arguing that his probation on an earlier conviction had been revoked for the same alleged conduct.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:

"Except as provided in ORS 131.525 and 131.535: "(1) No person shall be prosecuted twice for the same offense. "(2) 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 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.

"The function of the proceeding is not to punish a defendant for a new crime. * * * 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. 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.

NOTES

[1] As recently as 1987, we reaffirmed the Montgomery and Eckley principle that a probation revocation is not a criminal proceeding. State v. Kissell, 83 Or. App. 630, 732 P.2d 940 (1987).