Next, we must address defendant's constitutional argument. See State v. Farley, 301 Or. 668, 671, 725 P.2d 359 (1986). Article I, section 12, of the Oregon Constitution provides:

In State v. Brown, 262 Or. 442, 497 P.2d 1191 (1972), the Supreme Court held that a second prosecution is for the same offense "if the charges arise out of the `same act or transaction,' could have been tried in the same court, and were or could have been known to the prosecutors at the time of the first prosecution." State v. Farley, 301 Or. 668, 672, 725 P.2d 359 (1986). The manslaughter and criminally negligent homicide charges are unquestionably the same offense under those tests.

The state argued in this court that that statute "is dispositive of defendant's [statutory] former jeopardy claim in this case" and cited our opinion in State v. Farley, 78 Or. App. 102, 714 P.2d 1079 (1986). Subsequently, the Supreme Court reversed. State v. Farley, 301 Or. 668, 725 P.2d 359 (1986). Farley was charged with driving under the influence of intoxicants (DUII) and driving while suspended (DWS).

Although the state does not expressly say so, its argument implies that defendant, and not the state, assumed the risk of the victim's death.See ORS 131.525(1)(d) (subsequent prosecution not barred for offense not consummated when former prosecution began); Commentary to Criminal Law Revision Commission Proposed Oregon Criminal Procedure Code, Final Draft and Report, § 28, 22 (Nov. 1972) (explaining that statute as permitting later prosecution when harm occurs after prior prosecution for same criminal episode; for example, when a defendant is prosecuted for reckless driving and the victim later dies, subsequent negligent homicide prosecution is permitted); see also State v. Farley, 301 Or. 668, 672, 725 P.2d 359 (1986) (explaining what constitutes prohibited subsequent prosecution for "same offense" under Article I, section 12).The state's reliance on Smith Tug is unpersuasive, for two reasons.

To defeat the claim of former jeopardy, the prosecution relied on ORS 131.525 (2), which states that a "plea of guilty or resulting judgment is not a bar under ORS 131.515 (2) to a subsequent prosecution under an accusatory instrument which is filed no later than 30 days after entry of the guilty plea." As explained today in State v. Farley, 301 Or. 668, 725 P.2d 359 (1986), ORS 131.525 (2) may modify the rule of ORS 131.515 (2), but it cannot treat a conviction on a plea of guilty as something less than former jeopardy in order to evade the guarantee of Article I, section 12, of the Oregon Constitution against being "put in jeopardy twice for the same offence."

We treat that action as a former prosecution for purposes of the former jeopardy statutes. See State v. Blair, 75 Or App 12, 16, 705 P2d 752, rev den, 300 Or 180 (1985) (explaining that jeopardy attaches for statutory purposes after a conviction is entered on a no contest plea); see also State v. Farley, 78 Or App 102, 106-07, 714 P2d 1079, rev'd on other grounds, 301 Or 668, 725 P2d 359 (1986) (suggesting that the omission of no contest pleas from a related statute, ORS 131.525(2), was merely "legislative oversight," and stating that, for purposes of ORS 131.525(2), despite the absence of a specific reference to no contest pleas, "[w]e do not think that defendant's or the state's rights would have been any different had he pled no contest"). When the state then proceeded with the prosecution on the criminal information, defendant protested that his careless driving conviction barred the state from prosecuting him for reckless driving and DUII. He filed a motion to dismiss those charges, citing ORS 131.

Three years later, in a footnote in State v. Hammang, 271 Or 749, 756-57 n 4, 534 P2d 501 (1975), the court overruled the result in Brown but also stated that it was "in no way a repudiation of Brown's rationale." Eleven years after that, in State v. Farley, 301 Or 668, 674, 725 P2d 359 (1986), the Supreme Court overruled the Hammang footnote and fully reaffirmed Brown. During the interim between Hammang and Farley, both this court and the Supreme Court sometimes suggested that Article I, section 12, gave less protection to a defendant's double jeopardy rights than did ORS 131.515(2).

Rather, a second prosecution is for the "same offense" for the purpose of Article I, section 12, if: (1) the charges arise out of the same act or transaction; (2) the charges could have been tried in the same court; and (3) the prosecutor knew or reasonably should have known of the facts relevant to the second charge at the time of the original prosecution. State v. Brown, 262 Or. 442, 457-58, 497 P.2d 1191 (1972) (setting out standard); State v. Ellison, 301 Or. 676, 725 P.2d 363 (1986); State v. Farley, 301 Or. 668, 672, 725 P.2d 359 (1986); State v. Hunt, 119 Or. App. 452, 851 P.2d 622 (1993). It is not disputed that the charges could have been tried in the same court or that the prosecutor knew of the facts relevant to the second charge at the time of the original prosecution.

(Citations omitted; emphasis in original.) See also State v. Farley, 301 Or. 668, 674, 725 P.2d 359 (1986). As we understand petitioner's argument, it is not that he was prosecuted twice for the same act — indeed, the indictments alleged different incidents on different dates.

"the charges arise out of the same 'act or transaction,' could have been tried in the same court, and were or could have been known to the prosecutors at the time of the first prosecution." State v. Farley, 301 Or. 668, 672, 725 P.2d 359 (1986). The second petition does not allege the same offense as did the first petition.