dissenting.
Unlike the majority, I do not think this case can be resolved merely by citing prior cases for the simple reason that I do not think the prior cases directly considered or specifically resolved what I understand the present issue to be.
A couple of preliminary points will aid in defining the issue. The three charges in the indictment currently pending against defendant arose from a single transaction, were all known at the same time to the prosecutor and are triable in the same court. State v. Brown, 262 Or 442, 497 P2d 1191 (1972). This means that, had the defendant not successfully moved for a new trial following his conviction on the single charge of conspiracy to commit robbery, the state would be foreclosed from prosecuting him on the additional charges here in question.
The parties, the trial court and the majority have all assumed that, for double-jeopardy purposes, a trial *223court’s allowance of a motion for a new trial is the functional equivalent of an appellate court’s reversal and remand for a new trial. I join in that assumption.
Thus, the question becomes: Given that a final judgment on the single charge for which defendant was initially tried would bar further prosecution on the additional charges the state has added, why does the defendant’s success in getting the initial judgment set aside expose him to the need to defend against and to potential criminal liability for additional charges that could not otherwise be made? "Nullification” is the majority’s answer. But that term has alternative possible meanings. It certainly means, I agree, that a person can be prosecuted again for the same charge following reversal. But the majority uses "nullification” to mean that a person can have the proverbial book thrown at him by being charged with any number of new or different crimes that would otherwise be barred by the Brown doctrine. I therefore think the central issue where the majority and I differ comes down to the extent oí "nullification” following reversal or its equivalent.
I would hold nullification does not extend to reviving what is otherwise dead — charges that could have been made but were not made and that would otherwise be barred by the Brown doctrine. I find support for that approach in two analogous situations.
Suppose a defendant were charged with a greater crime, say murder, and convicted of a lesser crime, say manslaughter. Suppose the manslaughter conviction was reversed because of procedural error. On remand, could the defendant again be prosecuted for murder? I think not, because what is effectively acquittal on the greater charge is not nullified by reversal of the conviction on the lesser charge. The majority agrees with a negative answer. 40 Or App at 222. But I understand the thesis of the majority opinion to be that nullification is complete and total, i.e., that a defendant is in the same position he was in the day *224before any charge was made. Having adopted that thesis, I cannot understand the majority’s agreement that the state could not retry my hypothetical defendant for murder.
But by whatever logic, the majority does agree with the result: following a charge of murder, which resulted in a conviction for manslaughter, which was reversed on appeal, the defendant could only be retried for manslaughter. To that agreement, I add one other point: Under Brown, a prosecutor’s decision to charge a certain crime but not to charge other crimes that arise from a single transaction is, once trial begins, functionally the same as a jury acquittal for the other crimes. Given that a jury acquittal on a greater charge is not nullified by reversal of a conviction on a lesser charge, and given that a decision not to prosecute can have the same effect as an acquittal, I think it follows that nullification of jeopardy does not extend to charges that could have been made but were not made and that otherwise would be barred by the Brown doctrine.
The second analogy that I think supports a more limited application of nullification than used by the majority comes from State v. Turner, 247 Or 301, 429 P2d 565 (1967). The defendant had been convicted of robbery. That conviction was reversed and remanded for a new trial. Defendant was convicted again on the same charge and received a longer sentence than that imposed after the original trial. The Supreme Court held that upon retrial a defendant could not be given a greater sentence than he had received at the conclusion of the first trial. In so holding, the Supreme Court rejected the exact premise followed by the majority today — that the first trial was a total nullity that should be regarded as never happening. 247 Or at 312.
My understanding of Turner can be illustrated with a different hypothetical. Suppose a defendant were charged with and convicted of manslaughter, which *225conviction was reversed because of procedural error. On remand, could the state obtain a new indictment charging murder? I see nothing in today’s majority opinion that suggests a negative answer. But I think a negative answer is implicit in Turner: the prohibition against imposing a greater sentence on retrial implies a limitation on exposing the defendant to substantially greater possible criminal liability.
In any event, Turner specifically bars a sentence that could have been imposed, but was not. I do not think it is straining an analogy to rely on Turner for my present position of barring retrial on charges that could have been made, but were not.
I do not think the prior cases relied upon by the majority have considered or resolved the extent of nullification of jeopardy which I see as the central issue here. State v. Jones, 240 Or 546, 402 P2d 738 (1965), is limited in its guidance because it was decided before State v. Brown, supra, which creates a large part of the present question. Moreover, Jones and State v. Ayers, 16 Or App 655, 520 P2d 449, rev den (1974), were both cases where the first trial ended favorably to the defendant solely because of a variance between the pleading and the proof. Obviously, such cases present unique problems to the extent that, by definition, retrial is going to involve some new or different charge. I would not extract from variance cases like Jones or Ayers any general proposition that new or different charges are always permissible on retrial.
State v. Gaylor, 19 Or App 154, 527 P2d 4 (1974), is to the contrary of the position I would here adopt. The defendant’s first trial had been on a single-count indictment charging negligent homicide. Following an appellate reversal, he was tried for two counts of negligent homicide — causing the death of the victim alleged in the original indictment, and causing the death of another victim killed in the same automobile accident. Although our opinion does not so state, we *226apparently assumed that the additional charge would have otherwise been barred under the rules of State v. Brown, supra.
We nevertheless upheld the addition of and conviction for the charge involving the second victim repeating the often-used language equating nullification of jeopardy with a "slate wiped clean.” 19 Or App at 159. But mere repetition does no validate a legal cliche. And as stated above, it is now clear to me that the slate is not wiped clean in at least two situations: (1) reversal of a conviction on a lesser-included charge does not revive the greater charge for which the defendant was implicitly acquitted; and (2) reversal of a conviction on any charge does not revive the possibility of defendant receiving a greater sentence than that actually imposed in the first trial. Nullification is therefore not complete and total — a fact that is not going to be changed by any number of metaphors about spotlessly clean slates.
For the foregoing reasons I would overrule Gaylor and hold that an appellate reversal does not authorize retrial on new charges that would otherwise be barred by Brown. I respectfully dissent.
Thornton, Richardson and Roberts, Judges, join in this dissenting opinion.