State v. Ellis , 14 Or. App. 84 ( 1973 )

511 P.2d 1264 (1973)

STATE of Oregon, Respondent,
v.
Justin Perry ELLIS, Appellant.

Court of Appeals of Oregon.

Argued and Submitted June 21, 1973. Decided July 16, 1973.

J. Marvin Kuhn, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem.

Doyle L. Schiffman, Dist. Atty., Roseburg, argued the cause for respondent. With him on the brief was Brian R. Barnes, Deputy Dist. Atty., Roseburg.

Before SCHWAB, C.J., and FOLEY and THORNTON, JJ.

FOLEY, Judge.

Defendant appeals from a conviction of the offense of hindering prosecution for which he was fined $300.

Defendant was originally indicted for burglary but at the time set for trial the district attorney moved to dismiss the indictment in order to include more charges in a subsequent indictment: "* * * According to the recent Supreme Court case, this must be all done in the same indictment. I refer to State v. Brown. * * *"^[1] The court thereupon dismissed the burglary indictment "with prejudice." Defendant was then re-indicted on three counts: I, Burglary; II, Theft by receiving; and III, Hindering prosecution. This is the same burglary as was charged in the original indictment. Defendant contends that the dismissal of the original burglary indictment "precluded any further prosecution on the burglary charge as well as any other crimes that were part of that transaction," since under the rule of State v. Brown "* * * [it] would constitute double jeopardy."

The trial court agreed that the burglary count should be dismissed but declined to dismiss Counts II and III. Thereafter, defendant stipulated to facts which established guilt of Count III, hindering prosecution, and the court dismissed the other offense, theft by receiving, Count II.

Defendant's contention is that conviction of hindering is precluded because it constitutes double jeopardy under State v. Brown, 262 Or. 442, 497 P.2d 1191 (1972). It must be remembered that Brown involved a situation where the defendant had been convicted and sentenced for the misdemeanor of carrying a concealed weapon and thereafter he was convicted of the felony of being an exconvict in possession of a concealable firearm and sentenced to five years. This was stipulated to be the same incident as the concealing misdemeanor. Thus, in Brown the defendant had, in fact, been in jeopardy for the offense of carrying a concealed weapon. The Supreme Court there held that defendant's plea of double jeopardy to the felony prosecution should have been allowed and set forth standards to be applied in the future to determine what charges must be included in the indictment. Brown requires that charges which (1) arise out of the same act or transaction,^[2] (2) could be tried in the same court, and (3) involve facts which are known or ought to be known by the prosecutor, be included in the indictment. It was compliance with these requirements which the state was attempting in the present proceeding.

No question is presented in this appeal with reference to burglary, Count I, as such, or theft by receiving, Count II, as both were dismissed. The only question is whether the dismissal of the burglary charge rendered the subsequent charge of hindering prosecution double jeopardy. We answer in the negative. Unlike in Brown, defendant had never been in jeopardy as to that offense. Jeopardy does not attach until the jury is impaneled and sworn or the equivalent. State v. Buck, 239 Or. 577, 398 P.2d 176, 399 P.2d 367 (1965). Here defendant was not in jeopardy for hindering until he entered the stipulation of facts and it was accepted by the court.

As the trial court stated, it was the intention in dismissing the burglary charge "* * * not * * * to * * * bar * * * those other charges that the state sought to bring against the defendant, and which was the occasion for the filing of the motion to dismiss * * * in the first place. * * *"

Affirmed.

NOTES

[1] State v. Brown, 262 Or. 442, 497 P.2d 1191 (1972).

[2] For a discussion of what constitutes the same transaction, see State v. Sanchez, Or. App., 511 P.2d 1231 (July 16, 1973), and State v. Leverich, Or. App., 511 P.2d 1265 (July 16, 1973).