2015 ORS 131.515¹
Previous prosecution
  • when a bar to second prosecution

Except as provided in ORS 131.525 (Previous prosecution) and 131.535 (Proceedings not constituting acquittal):

(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.

(3) If a person is prosecuted for an offense consisting of different degrees, the conviction or acquittal resulting therefrom is a bar to a later prosecution for the same offense, for any inferior degree of the offense, for an attempt to commit the offense or for an offense necessarily included therein.

(4) A finding of guilty of a lesser included offense on any count is an acquittal of the greater inclusive offense only as to that count. [1973 c.836 §27; 1997 c.511 §3]

See also annota­tions under ORS 135.900 in permanent edi­tion.

Notes of Decisions

"Same crim­i­nal episode" has same meaning as based on same transac­tion for purposes of charging under ORS 132.560 (Joinder of counts and charges). State v. Boyd, 271 Or 558, 533 P2d 795 (1975); State v. Shields, 280 Or 471, 571 P2d 892 (1977)

When facts of each charge can be explained adequately only by drawing upon facts of the other charge, the charges are cross-related and must be joined. State v. Boyd, 271 Or 558, 533 P2d 795 (1975)

Where circumstances upon which culpability rests is pos­ses­sion, simultaneous pos­ses­sion of two distinct types of contraband constitutes a unitary act or transac­tion with respect to which charges must be joined. State v. Boyd, 271 Or 558, 533 P2d 795 (1975)

If state must prosecute for only one charge because defendant has voluntarily and unilaterally entered plea of guilty on an­oth­er charge, there can be no argu­ment that the state has harassed defendant. State v. Roach, 271 Or 764, 534 P2d 508 (1975)

Where defendant opposed state's mo­tion to consolidate charges resulting from same con­duct he waived double jeopardy protec­tion, and two findings of guilty were properly merged into one con­vic­­tion for sen­ten­cing. State v. Brissette, 31 Or App 1243, 572 P2d 1068 (1977)

Guilty plea to lesser of two counts charging crim­i­nal ac­tivity in drugs, entered over objec­tion of pros­e­cu­­tion and with defendant's expression of desire that state be put to its proof on other count, was express waiver of jeopardy protec­tion as to other count. State v. Flaherty, 33 Or App 251 (1978), Sup Ct review denied

Where, following dismissal of proba­tion hearing charging viola­tion by unlawfully pos­ses­sing and controlling concealable weapon, state initiated sec­ond revoca­tion pro­ceed­ing based on con­vic­­tion of being ex-convict in pos­ses­sion of firearm, which con­vic­­tion arose from same incident alleged in first revoca­tion pro­ceed­ing, proba­tioner was not placed in "jeopardy" because revoca­tion pro­ceed­ing is not crim­i­nal adjudica­tion. State v. Eckley, 34 Or App 563, 579 P2d 291 (1978); State v. Maricich, 101 Or App 212, 789 P2d 701 (1990)

Waiver of right to single pros­e­cu­­tion of all charges under this sec­tion did not occur where state did not make timely mo­tion for consolida­tion of charges. State v. Hagey, 38 Or App 487, 590 P2d 753 (1979)

Where defendant was convicted of assault, double jeopardy barred trial on first of­fense of driving under influence of intoxicants ([former] ORS 487.540) arising out of same act or transac­tion. State v. Marquette, 39 Or App 519, 592 P2d 1062 (1979)

When an indict­ment charges that a crim­i­nal agree­ment was made in a certain county, a con­vic­­tion cannot rest on proof that the agree­ment was made in a different county and only sub­se­quent acts in pursuance of the agree­ment occurred in the county where the making of the agree­ment is alleged. State v. Roper, 286 Or 621, 595 P2d 1247 (1979)

Where jury's inability to reach verdict was caused by bailiff's improper remarks, defendant could not constitu­tionally be retried after mistrial. State v. Rathbun, 287 Or 421, 600 P2d 392 (1979)

Where, as result of same crim­i­nal episode, defendant was charged with violating Portland City Code and also with felony pos­ses­sion of controlled substance, defendant's trial in district court on municipal ordinance of­fense did not bar sub­se­quent circuit court trial on felony charge, because circuit court lacked jurisdic­tion to try ordinance viola­tion. State v. Jones, 45 Or App 307, 608 P2d 572 (1980), Sup Ct review denied

Where defendant was convicted of DUII in municipal court, this sec­tion did not bar sub­se­quent circuit court pros­e­cu­­tion for driving while suspended, arising out of same crim­i­nal transac­tion, because district attorney did not have control over pros­e­cu­­tion of both of­fenses. State v. Ogle, 46 Or App 109, 610 P2d 1242 (1980)

Where defendant, after having been put under arrest for DUII, admitted his role in burglary a few minutes earlier and about a mile and a half away, these crimes were not related to single crim­i­nal objective and separate pros­e­cu­­tions were not prohibited by this sec­tion. State v. Yock, 49 Or App 749, 621 P2d 592 (1980), Sup Ct review denied

"Appropriate prosecutor" for purposes of preventing separate pros­e­cu­­tion of of­fenses based on same crim­i­nal episode refers to district attorney of proper jurisdic­tion for pros­e­cu­­tion of of­fense charged. State v. Knowles, 289 Or 813, 618 P2d 1245 (1980)

Require­ment that sec­ond of­fense be "reasonably" known to prosecutor is designed to bar sec­ond pros­e­cu­­tion only where sufficient evidence to prosecute sec­ond of­fense exists at time first of­fense is tried. State v. Knowles, 289 Or 813, 618 P2d 1245 (1980)

State was barred by this sec­tion from prosecuting defendant on sec­ond charge, which was one of several of­fenses reasonably known to prosecutor at time of commence­ment of first pros­e­cu­­tion, where the pros­e­cu­­tion of sec­ond charge was delayed because state was unsuccessfully at­tempting to gather sufficient evidence to charge defendant with more serious of­fense. State v. Decoteau, 54 Or App 346, 634 P2d 832 (1981)

Where state mo­tion to consolidate charges for trial was not timely, defendant's objec­tion to mo­tion on sole ground of untime­liness did not constitute waiver of defendant's right to have all charges prosecuted in single trial and sub­se­quent trial on charge arising out of same transac­tion constituted double jeopardy under this sec­tion. State v. Scovell, 54 Or App 391, 635 P2d 7 (1981), Sup Ct review denied

Since reckless driving is distinct event, wholly unrelated to acts of pos­ses­sing controlled substance or pos­ses­sing concealed weapon, it could not constitute single crim­i­nal episode for double jeopardy purposes. State v. Paquin, 55 Or App 676, 639 P2d 694 (1982), Sup Ct review denied

Where parties stipulated to the facts and defendant was convicted after trial to the court, jeopardy attached between time of fact stipula­tion and con­vic­­tion on lesser included of­fense, so retrial on greater of­fenses was barred by former jeopardy. State v. Adams, 56 Or App 303, 641 P2d 647 (1982)

Where loca­tions of victims and objectives of hom­i­cide and kidnapping were different and there was 17-hour period between two of­fenses, crimes did not arise out of same episode. State v. Hunter, 58 Or App 99, 647 P2d 943 (1982), Sup Ct review denied

Where deputy district attorney suspected defendant was involved in hom­i­cide, but did not feel he had sufficient evidence to go forward with pros­e­cu­­tion until the defendant's girlfriend came forward with evidence inculpating defendant, deputy district attorney did not reasonably know of hom­i­cide charge when defendant was indicted and convicted on first charge. State v. Hunter, 58 Or App 99, 647 P2d 943 (1982), Sup Ct review denied

Trial court erred in dismissing indict­ment on grounds of former jeopardy where burglary, assault and crim­i­nal mischief charges in indict­ment and disorderly con­duct charges for which defendant had been tried and convicted arose out of incidents occurring at different places and approximately forty to forty-five minutes apart, circumstances of two events were different and ele­ments of the charges were different and details not cross-related. State v. Crumal, 62 Or App 156, 659 P2d 977 (1983)

Where defendant was charged in district court with assault in the fourth de­gree and later was served with a uniform traffic cita­tion in municipal court charging her with driving under the influence of intoxicants and both of­fenses arose out of the same episode, district court properly dismissed assault charge. State v. McGilchrist, 294 Or 473, 657 P2d 681 (1983)

"Offense" under this sec­tion includes pro­ceed­ings on contempt charges under [former] ORS 33.040 and thus, pros­e­cu­­tion sub­se­quent to contempt pro­ceed­ing, for the same con­duct, is barred. State v. Thompson, 294 Or 528, 659 P2d 383 (1983)

Prosecu­tion of unauthorized use of vehicle charge after defendant pleaded guilty to DUII is barred by this sec­tion where charges involved common ele­ment that defendant was driving. State v. Grant, 66 Or App 906, 675 P2d 1120 (1984)

Driving under influence of intoxicants and unlawful pos­ses­sion of less than an ounce of marijuana do not constitute single crim­i­nal episode for purposes of statutory former jeopardy because none of ele­ments of pos­ses­sion charge were necessary proof for DUII charge. State v. Williamson, 68 Or App 569, 681 P2d 1191 (1984)

Where pos­ses­sion of cocaine charge was not reasonably known to district attorney when defendant appeared in justice court to plead guilty to crim­i­nal mischief charge and to accept diversion on DUII charge, trial on pos­ses­sion charge was not barred by former jeopardy. State v. Anthony, 68 Or App 718, 683 P2d 559 (1984)

Where defendant pleaded guilty to misdemeanor of pointing firearm at an­oth­er, sub­se­quent pros­e­cu­­tion for felony of­fense of ex-convict in pos­ses­sion of firearm arising from same incident is barred because burden of joinder is on state and defendant's guilty plea did not waive double jeopardy de­fense. State v. Gardner, 71 Or App 590, 693 P2d 1303 (1984)

Where defendant pleaded no contest to theft in first de­gree by decep­tion but, before sen­ten­cing, further evidence was presented to grand jury which returned indict­ment charging defendant with four addi­tional counts of theft in first de­gree by decep­tion, defendant was not placed in double jeopardy under this sec­tion. State v. Blair, 75 Or App 12, 705 P2d 752 (1985), Sup Ct review denied

Two deliveries of drugs separated by four-hour period are not "single crim­i­nal episode" just because agent who received drugs had initially ordered single quantity. State v. Hathaway, 82 Or App 509, 728 P2d 908 (1986), Sup Ct review denied

Defendant would be twice put in jeopardy if state were allowed to proceed with driving while suspended charge after defendant pleaded guilty to driving under influence of intoxicants charge because defendant's con­duct consisted of single forbidden act of driving. State v. Farley, 301 Or 668, 725 P2d 359 (1986)

Where defendant ap­pealed con­vic­­tion of driving while suspended on grounds he pre­vi­ously had been placed in jeopardy when convicted of giving false name to police of­fi­cer during same crim­i­nal episode, for constitu­tional purposes, giving false identifica­tion was separate of­fense from unlawful driving because acts did not occur simultaneously and were not in pursuit of single objective. State v. Ellison, 301 Or 676, 725 P2d 363 (1986)

Where trial court granted mistrial after de­fense counsel proclaimed in presence of jury "the pros­e­cu­­tion is hiding all the facts from the jury...and I'm trying to bring out the truth and nothing but the truth," further pros­e­cu­­tion on charge did not violate defendant's right against twice being placed in jeopardy for same of­fense. State ex rel Wark v. Freerksen, 84 Or App 90, 733 P2d 100 (1987), Sup Ct review denied

This sec­tion is not violated if defendant is tried in single pro­ceed­ing under single accusatory instru­ment and is acquitted by jury of crime and then convicted by court of lesser included of­fense which jury cannot try. State v. Cuffee, 87 Or App 293, 742 P2d 637 (1987)

Where defendants participated at restaurant in ongoing scheme to steal liquor sale proceeds from employer and thefts began in 1983 and continued until plan was discovered by employer in 1984, several felony theft and con­spir­a­cy indict­ments did not arise out of same crim­i­nal episode for purposes of double jeopardy statute. State v. Black/Tuttle, 89 Or App 359, 749 P2d 1185 (1988), Sup Ct review denied

Defendant's pros­e­cu­­tion for traffic infrac­tion did not statutorily bar pros­e­cu­­tion for crime of driving while suspended. State v. Kambra, 93 Or App 156, 761 P2d 539 (1988), Sup Ct review denied

Where defendant's contempt sen­tence was based on same event as burglary charge, burglary pros­e­cu­­tion constituted double jeopardy. State v. McIntyre, 94 Or App 240, 764 P2d 972 (1988)

When defendant pleaded guilty on one count of crim­i­nally neg­li­gent hom­i­cide in indict­ment that contained four other counts, she waived her right to claim that sub­se­quent trial on remaining charges constituted double jeopardy. State v. Schaffran, 95 Or App 329, 769 P2d 230 (1989)

Where defendant filed mo­tion to dismiss charge of pos­ses­sion of controlled substance contending that earlier guilty plea to firearms charge barred further pros­e­cu­­tion because simultaneous pos­ses­sion of concealed weapon and controlled substance is part of "same crim­i­nal ac­tivity," trial court did not err in denying defendant's mo­tion nor was it an abuse of discre­tion not to allow evidentiary hearing on mo­tion to dismiss because prosecutor lacked knowledge of sufficient facts to prosecute defendant on drug charge at time defendant pleaded guilty to misdemeanor charge. State v. Lowery, 95 Or App 583, 770 P2d 923 (1989)

Where defendant filed mo­tion to dismiss first of two charges of driving under influence of intoxicants on ground of former jeopardy and two acts did not arise from "continuous and uninterrupted" con­duct and constituted separate crim­i­nal episodes, trial court did not err in refusing to dismiss first charge. State v. Nguyen, 95 Or App 653, 771 P2d 279 (1989), Sup Ct review denied

Where indict­ments for delivery and pos­ses­sion of controlled substances did not arise out of same "crim­i­nal episode," defendant's prior con­vic­­tion for pos­ses­sion of controlled substance does not bar pros­e­cu­­tion on double jeopardy grounds. State v. Smith, 95 Or App 683, 770 P2d 950 (1989), Sup Ct review denied

Plea of guilty, where indict­ment alleged crime in May, barred sub­se­quent pros­e­cu­­tion where indict­ment alleged crime in January, when stipulated facts showed both pros­e­cu­­tions were for same of­fense. State v. Dane, 103 Or App 420, 797 P2d 1069 (1990)

Where defendant resisted arrest on charge of crim­i­nal contempt for viola­tion of restraining order, but was sub­se­quently acquitted on crim­i­nal contempt charge, resisting arrest and viola­tion of restraining order were not part of same crim­i­nal episode and trial court erred in allowing mo­tion to dismiss charge of resisting arrest on ground of former jeopardy. State v. Stolz, 106 Or App 144, 806 P2d 715 (1991)

No former jeopardy existed where all predicate of­fenses in Attorney General's pros­e­cu­­tion under ORS 166.720 (Racketeering activity unlawful) were not included in counties' earlier indict­ments. State v. Cooper, 107 Or App 183, 810 P2d 1343 (1991)

Defendant's guilty plea to theft does not bar sub­se­quent pros­e­cu­­tion of burglary when require­ments of ORS 131.525 (Previous prosecution) are met. State v. Wilson, 115 Or App 217, 836 P2d 1380 (1992)

Acquittal on indicted charge does not bar state from retrying defendant under ORS 131.525 (Previous prosecution) on lesser included of­fense for which jury could not agree on verdict. State v. Perks, 118 Or App 336, 847 P2d 866 (1993), Sup Ct review denied

Under excep­tion provided in [former] ORS 153.585, defendant's pros­e­cu­­tion for traffic infrac­tion of driving without license does not bar sub­se­quent pros­e­cu­­tion for crime of failure to carry or present driver license, even though both are part of same crim­i­nal episode. State v. Darlin, 122 Or App 172, 857 P2d 859 (1993)

Where partially based on com­ments made during sen­ten­cing pro­ceed­ing, determina­tion that former jeopardy barred pros­e­cu­­tion was not supported by appropriate record. State v. Delker, 123 Or App 129, 858 P2d 1345 (1993), Sup Ct review denied

Prosecutor's suspicion that other wrongful acts occurred did not mean that prosecutor had reasonable knowledge or that acts could have been known to prosecutor at time of first pros­e­cu­­tion. State ex rel Juv. Dept. v. Nelson, 124 Or App 562, 863 P2d 497 (1993), Sup Ct review denied

Hung jury excep­tion in ORS 131.525 (Previous prosecution) applies for all sub­se­quent pros­e­cu­­tions, whether for same of­fense or based on new charges or theories. State v. Toste, 196 Or App 11, 100 P3d 738 (2004), Sup Ct review denied

Finding of guilty on lesser included of­fense operates as acquittal only for greater inclusive of­fense charged in same count. State v. Warner, 200 Or App 65, 112 P3d 464 (2005), aff'd342 Or 361, 153 P3d 674 (2007)

Where case is remanded for resen­ten­cing, empaneling jury to determine facts necessary to support sen­tence enhance­ment does not expose defendant to sec­ond pros­e­cu­­tion for same of­fense. State v. Sawatzky, 339 Or 689, 125 P3d 722 (2005)

Pretrial dismissal of charges with prejudice is not pros­e­cu­­tion. State v. Norkeveck, 214 Or App 553, 168 P3d 265 (2007), Sup Ct review denied

Law Review Cita­tions

53 OLR 101, 104, 105 (1973); 55 OLR 368-374 (1976); 66 OLR 953 (1987); 70 OLR 112 (1991); 27 WLR 913 (1991)

Notes of Decisions

Defendant's mo­tion to dismiss the charge on the basis of double jeopardy after he had been tried and convicted was properly overruled since the double jeopardy clause does not attach at this stage of the pro­ceed­ings. State v. Haycraft, 20 Or App 28, 530 P2d 528 (1975), Sup Ct review denied

If the state must prosecute for only one charge because the defendant has voluntarily and unilaterally entered a plea of guilty on an­oth­er charge, there can be no argu­ment that the state has harassed the defendant. State v. Roach, 271 Or 764, 534 P2d 508 (1975)

Where jury was properly instructed on theft, fact that defendant at one time misplaced or withheld prop­erty from 20 different victims was sufficient to constitute 20 separate theft of­fenses on each of which defendant could be sen­tenced. State v. Callaghan, 33 Or App 49, 576 P2d 14 (1978), Sup Ct review denied

Where defendant pointed pistol at and obtained money from each of four bank tellers in succession there occurred four separate robbery of­fenses and defendant was properly sen­tenced on each con­vic­­tion. State v. Dellman, 34 Or App 937, 580 P2d 567 (1978), Sup Ct review denied

Evidence that defendant took victim "from one place to an­oth­er" for purpose of forcible rape was sufficient to support separate con­vic­­tions for first de­gree kidnapping and rape. State v. Strickland, 36 Or App 119, 584 P2d 310 (1978)

Where one defendant, at same time and place, withholds prop­erty of two or more victims, there are as many of­fenses as there are victims; each indict­ment thus charges separate of­fense and verdict in trial of first indict­ment does not bar pros­e­cu­­tions under other indict­ments. State v. Gilbert, 281 Or 101, 574 P2d 313 (1978)

Ac­tion charging of­fense and terminating in guilty plea was "pros­e­cu­­tion for of­fense" for double jeopardy purposes. State v. Knowles, 289 Or 813, 618 P2d 1245 (1980)

Where parties stipulated to the facts and defendant was convicted after trial to the court, jeopardy attached between time of fact stipula­tion and con­vic­­tion on lesser included of­fense, so retrial on greater of­fenses was barred by former jeopardy. State v. Adams, 56 Or App 303, 641 P2d 647 (1982)

Where defendant fired one shot toward group of three per­sons, fact that he may have recklessly endangered everyone in vicinity was incidental to act of shooting one per­son and defendant could be sen­tenced for only one con­vic­­tion of recklessly endangering an­oth­er per­son in addi­tion to sen­tence for assault. State v. Wilson, 64 Or App 764, 669 P2d 1179 (1983)

Law Review Cita­tions

53 OLR 104 (1973); 59 OLR 346 (1980); 18 WLR 232 (1982)


1 Legislative Counsel Committee, CHAPTER 131—Preliminary Provisions; Limitations; Jurisdiction; Venue; Criminal Forfeiture; Crime Prevention, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ors131.­html (2015) (last ac­cessed Jul. 16, 2016).
 
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2015, Chapter 131, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano131.­html (2015) (last ac­cessed Jul. 16, 2016).
 
3 OregonLaws.org assembles these lists by analyzing references between Sections. Each listed item refers back to the current Section in its own text. The result reveals relationships in the code that may not have otherwise been apparent.