dissenting.
The majority has misunderstood the effect of the presiding circuit court judge’s order transferring all district court Class A misdemeanor cases to circuit court. That has caused it to reach the erroneous conclusion that defendant has twice been placed in jeopardy. The majority’s error is brought about, first, by its mistaken belief that because it rejects the state’s argument that the transfer order deprived the district court of jurisdiction, the first trial necessarily must be regarded as a district court trial. Because subject matter jurisdiction is conferred by statute and may not be eliminated by an administrative order, I also reject the state’s argument that the district court was without jurisdiction over the case; however, that conclusion does not lead to the majority’s holding that defendant’s first trial must be regarded as having taken place in district court. In explaining its view, the majority states:
“The order plainly states that, before the circuit courts may take action on cases already filed in district court, captions on the pleadings must be changed and defendants must be ‘rearraigned in Circuit Court prior to trial or other disposition except dismissal.’ ” 145 Or App at 378.
It then concludes that, because those events did not occur, the case was tried in district court. In my view, although the presiding judge’s transfer order did not deprive the district court of jurisdiction, it did do what it purported to do: transfer the matter to circuit court. The order, the validity of which has not been challenged, provides:
“IT IS HEREBY ORDERED that all District Court cases currently pending in which there are one or more Class A misdemeanors charged, are transferred to the Circuit Court of the State of Oregon for Deschutes County;
*380“IT IS FURTHER ORDERED THAT all such case captions be amended by interlineation to reflect transfer to Circuit Court;
“IT IS FURTHER ORDERED that all such cases be tried by a Circuit Judge or Circuit Judge pro tem;
“IT IS FURTHER ORDERED that all defendants who have previously appeared be rearraigned in Circuit Court prior to trial or other disposition except dismissal.” (Emphasis supplied.)
As the emphasized portion of the first paragraph of the order indicates, the order itself effects the transfer of cases to circuit court. The third paragraph orders that all such cases be tried by a circuit judge or circuit judge pro tem. The requirements in the remaining paragraphs, relating to amendment of the caption and rearraignment, are procedural components of trial in circuit court, but they are not prerequisites to the transfer of a case or to the circuit court’s jurisdiction. Contrary to the majority’s view, those procedural components have no more to do with the circuit court’s jurisdiction of the matter than did the order with respect to the jurisdiction of the district court. Additionally, it is important to keep in mind that we are not called upon to address the validity of the transfer order. I would hold that the order itself effected a transfer of defendant’s case to circuit court without jurisdictional contingencies, and that, although defendant had not been rearraigned and the caption to the matter had not been amended, the first trial was a circuit court trial.1 The trial court correctly concluded that, because there had been no circuit court arraignment, the proceeding was legally defective; it correctly dismissed the case.
I respectfully dissent.
The differences between district and circuit court have become increasingly indistinct. By Supreme Court order, all district court judges are pro tem circuit court judges. The fact that the first trial in this case took place before a judge who was originally appointed as a district court judge is accordingly of no consequence.