State v. Shaw

“[P]rosecutorial knowledge which would bar a second prosecution after a plea of guilty on the first charge has to be knowledge which the prosecutor had or should have had at a time when he was in a position to call the attention of the court to the problem and move for joinder prior to the offer of a guilty plea on the first charge by the defendant and the acceptance of it by the court.” 20 Or App at 337.

Defendant appealed a trial court’s denial of his motion to dismiss. Prior to filing the felon in possession action, Defendant pleaded guilty to the charge of unlawful possession of methamphetamine. The State brought a charge against Defendant for felon in possession, and Defendant sought to have the new charge dismissed on double jeopardy grounds pursuant to Article I, Section 12, of the Oregon Constitution and the Fifth Amendment to the United States Constitution. “[P]rosecutorial knowledge which would bar a second prosecution after a plea of guilty on the first charge has to be knowledge which the prosecutor had or should have had at a time when he was in a position to call the attention of the court to the problem and move for joinder prior to the offer of a guilty plea on the first charge by the defendant and the acceptance of it by the court.” 20 Or App at 337. The Court, therefore, remanded to the circuit court for an evidentiary hearing. Vacated and remanded.