Upon defendant's motion the circuit court dismissed on the grounds of former jeopardy, and the State appealed. The Court of Appeals reversed, 43 Or. App. 567, 603 P.2d 1211 (1979), on the basis of State v. Hammang, 271 Or. 749, 534 P.2d 501 (1975). We there held that a conviction on a guilty plea to a charge of theft did not bar a subsequent prosecution for murder even if both offenses arose out of the same "transaction" and were triable in the same court and even if the prosecutor knew or reasonably should have known of the facts relevant to the murder at the time of the guilty plea to theft.
The state therefore argues that irrespective of ORS 131.525 (2), the state did not place this defendant twice in jeopardy for his unlawful driving when it first convicted him because he drove while intoxicated and then put him on trial because his license also was suspended at the time. This court divided on the criteria for determining whether two prosecutions were for the "same offense" in State v. Brown, 262 Or. 442, 497 P.2d 1191 (1972), and State v. Hammang, 271 Or. 749, 534 P.2d 501 (1975). In Brown, defendant had pled guilty to a charge of carrying a concealed weapon and thereafter was put on trial for being a convicted person in possession of a firearm.
"[P]lea agreements are essentially contracts to which contract law may be applied, and . . . the due process clause is the source of the defendant's constitutional rights implied in plea agreements." A question somewhat similar to the one we have before us was considered by the Oregon Court of Appeals in State v. Hammang, 19 Or. App. 265, 527 P.2d 137 (1974), aff'd 271 Or. 749, 534 P.2d 501 (1975). The Oregon Court of Appeals was considering the rule that a prosecution is prohibited by the bar on double jeopardy if the prosecutor knew or reasonably should have known of facts relevant to the second charge at the time of the original prosecution.
Id. at 457-58. 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.
ORS 131.515(1) sets out the constitutional double jeopardy standard prohibiting more than one prosecution for the "same offense." ORS 131.515(2) has been said to provide greater legislative protection than the constitution, barring separate prosecutions, not only for the same offense but for all known charges arising out of the same criminal episode.State v. Hammang, 271 Or. 749, 757, 534 P.2d 501 (1975);State v. Garnier, 171 Or. App. 564, 16 P.3d 1175 (2000); State v. Harris, 167 Or. App. 360, 362, 5 P.3d 1113 (2000); State v. Lyons, 161 Or. App. 355, 985 P.2d 204 (1999);State v. Delker, 123 Or. App. 129, 858 P.2d 1345 (1993), rev den 318 Or. 326 (1994). As noted earlier, we do not directly consider the applicability of subsection (2), because defendant relies only on the constitutional double jeopardy provision.
I believe that same spirit underlies ORS 131.515(2) (when a previous prosecution bars subsequent prosecution). See State v. Brown, 262 Or. 442, 497 P.2d 1191 (1972), overruled on other grounds, State v. Hammang, 271 Or. 749, 756, n 4, 534 P.2d 501 (1975). I believe this practice is one deserving of legislative review and direction.
(Emphasis added.) In State v. Hammang, 271 Or. 749, 534 P.2d 501 (1975), the Supreme Court held the state was not barred under ORS 131.515(2) from prosecuting the defendant for murder after he had pleaded guilty to theft of the murder weapon allegedly arising out of the same criminal episode. In the course of the opinion the court said:
Defense counsel seeks to justify the dismissal not on the grounds of justice or fair play, but rather by observing that criminal law, as practiced in the arena of the trial court, is actually and properly a contest of gamesmanship and, if the defendant is able to manipulate the system to his advantage, then so be it. In State v. Hammang, 271 Or. 749, 534 P.2d 591 (1975), defendant pled guilty to theft of a gun. That conviction was held not to bar a later prosecution for murder arising from the same criminal episode.
PER CURIAM. This case is again before us on remand from the Supreme Court for reconsideration in light of State v. Hammang, 271 Or. 749, 534 P.2d 501 (1975). We adhere to our prior analysis of the prosecutorial-knowledge element of the double-jeopardy test of State v. Brown, 262 Or. 442, 497 P.2d 1191 (1972).
In Watson, supra, we cited the following authorities from other jurisdictions which utilize a similar joinder rule, 166 W. Va. at 343, 274 S.E.2d at 443: See also Commonwealth v. Campana, 455 Pa. 622, 314 A.2d 854 (1974), cert. denied, 417 U.S. 969, 94 S.Ct. 3172, 41 L.Ed.2d 1139; State v. Brown, 262 Or. 442, 497 P.2d 1191 (1972), overruled on other grounds, State v. Hammang, 271 Or. 749, 534 P.2d 501 (1975).See also State v. Carroll, 63 Haw. 345, 627 P.2d 776 (1981); State v. Rytky, 476 A.2d 1152 (Me., 1984).