Defendant was indicted for and convicted of conspiracy to commit robbery in the first degree. His motion for а new trial based on newly discovered evidence was granted. The grand jury then reindicted defendant and chargеd him with three counts, all part of the same act and transaction: Count I, conspiracy to commit robbery in the first degree; Count II, robbery in the first degree; and Count III, theft in the first degree. Defendant moved to dismiss Counts II and HI on the ground that they are barred by former jeopardy. The circuit court granted defendant’s motion. The Court of Appeals, hоwever, reversed and held that a former prosecution does not constitute former jeopardy when the conviction is set aside upon defendant’s motion.
The issue before this court is whether, after defendant’s cоnviction has been set aside on his motion for a new trial, the state may prosecute defendant for additional charges arising from the same criminal episode.
Although this case presents questions of former jeoрardy, involving both state constitutional issues (Art I, § 12) and statutory issues (ORS 131.505-131.535), we find that the resolution of this case is determined by the prinсiple of law we announced in
State v. Turner,
The defendant in
Turner
was convicted of assault with intent to rob and was originally sentenced to five years’ imprisonment. He appealed and his conviction was reversed for constitutional error cоmmitted at his trial.
State v. Turner,
This court reversed with instructions to resentence Turner to five years’ imprisonment, his original sentence, with credit for time already served. We held
*646
that, after an appeal or post-conviction proceeding has resulted in ordering a retrial for errors other than an erroneous sentence, the defendant upon reconviction cannot be given a harsher sеntence than that originally imposed.
"We do not find it necessary to decide the constitutional issues as we conclude that when the state grants a criminal appeal as a matter of right to one convicted оf a crime, as it has, our procedural policy should be not to limit that right by requiring the defendant to risk a more sevеre sentence in order to exercise that right of appeal. * * *”247 Or at 315 .
We adopted this principle of рrocedural fairness from an approach advanced by the New Jersey court in
State v. Wolf,
46 NJ 301,
"In the appeаl before us we do not find it necessary to decide whether the double jeopardy clauses of either the Federal or the State Constitutions are applicable. Nor need we concern ourselves with the quеstion whether the reach of the due process clause of the Fourteenth Amendment of the Federal Cоnstitution provides a bar against imposition of the death penalty on Wolfs retrial. Our decision finds its base in proсedural policies which are of the essence of the administration of criminal justice.” 46 NJ at 308.
We subsequently fоllowed this important principle in the opinion of Chief Justice O’Connell in
State ex rel Dillavou v. Foster,
We held that petitioner’s probation and 180-day sentence was not stayed by his appeal. Because he had completed the jail sentenсe required by his probation, we held that petitioner should have been released. Regarding the court ordеr requiring petitioner to serve time without credit during his appeal, we said that it had the effect of forcing pеtitioner to choose between extra time in jail while appealing his conviction and release after six months if he does not appeal. Citing Turner, we concluded that
"[t]his would have the effect of penalizing petitioner for taking an appeal. Our cases * * * hold that the state cannot impose such a penalty.”273 Or at 324 and n. 8.
Similarly, the state should not bе able to restrict a criminal defendant’s right to move for and receive a new trial by posing the risk of increasing the charges against him if the defendant is successful in his motion for a new trial.
At the time of his first trial, the defendant was chаrged with conspiracy to commit robbery in the first degree. The state at that time could have charged defendant with robbery or theft based on the same criminal episode. If on retrial the state is permitted to increаse the charge or add additional charges based on the same criminal episode, the effect wоuld be to penalize the defendant for exercising his right to move for a new trial. Procedural policies аre the essence of the administration of criminal justice, and procedural fairness forbids penalizing the dеfendant for exercising his rights.
Accordingly, we hold that after the defendant successfully moved for a new trial on the grounds of newly discovered evidence, the state may not prosecute the defendant for additional charges arising from the same criminal episode.
Reversed and remanded to the circuit court.