State v. Bushman

ORME, Judge

(concurring in the result):

1 26 I concur in this court's judgment affirming the district court's denial of Bushman's motion to dismiss all charges against him on double jeopardy grounds. But I do not see any need to discuss at length the intricacies of double jeopardy jurisprudence. In my view, Bushman waived any claim he might otherwise have under the Double Jeopardy Clause when he voluntarily entered into the Consent Order and specifically agreed that the Consent Order was no bar to "any criminal cause of action that a proseeutor might bring."

T27 Without such a provision, Bushman might at least have a good due process argument that he should be relieved of his obligations under the Consent Order, as most citizens would assume that by entering into such an agreement with an enforcement arm of the State, they were buying comprehensive peace with the State. But with such a provision in place, Bushman did not proceed under any such misapprehension and, on the contrary, expressly recognized the possibility that a criminal prosecution might be forthcoming and that the Consent Order had no effect on the validity of any such prosecution.