(dissenting).
I respectfully dissent. This case is complicated only because the majority opinion fails to apply a criminal rule — Minn.R.Crim.P. 17.06, subd. 4(3)1 — according to its plain language and as it was clearly intended to be applied.
The facts are simple. The prosecutor originally took the matter before the grand jury and instructed the jurors on the elements of first-, second- and third-degree murder as well as first- and second-degree manslaughter, adding that it was up to the grand jurors to decide what offenses, if any, to charge. The grand jury returned an indictment for third-degree murder.
Defendant persuaded the district court to dismiss the indictment because the prosecutor presented improper evidence to the grand jury.
The prosecutor then re-presented the matter to a successor grand jury. This time, *134however, the prosecutor did not instruct the jurors on the elements of first-degree, second-degree, and third-degree murder and first- and second-degree manslaughter as he had on the presentation to the original grand jury. Instead, the prosecutor read only the instruction for first-degree murder, adding that the grand jurors could review a booklet containing other instructions if they wished. This time the grand jury indicted defendant for first-degree murder instead of third-degree murder.
Defendant moved to dismiss, arguing that while further prosecution for the “same offense” as originally charged was not barred, first-degree murder was not the same offense as third-degree murder but a clearly different, more serious offense. The district court denied the motion.
With the agreement of the prosecutor, defendant stipulated to certain facts supporting a finding of second-degree murder and waived his right to a jury trial on the understanding that he was free to challenge the denial of his motion to dismiss the second indictment. The district court, acting as trier of fact, found defendant guilty of second-degree murder.
In its entirety Rule 17.06, subd. 4(3), Minn. R.Crim.P., provides as follows:
If the dismissal is for failure to file a timely complaint as required by Rule 4.02, subd. 6(3), or for a defect that could be cured or avoided by an amended or new indictment, or complaint, further prosecution for the same offense shall not be barred, and the court shall on motion of the prosecuting attorney, made within seven (7) days after notice of the entry of the order granting the motion to dismiss, order that defendant’s bail or the other conditions of release be continued or modified for a specified reasonable time pending an amended or new indictment or complaint.
In misdemeanor cases, if the defendant is unable to post any bail that might be required under rule 6.02, subd. 1, then the defendant must be released subject to such non-monetary conditions as the court deems appropriate under that rule. The specified time for such amended or new indictment or complaint shall not exceed sixty (60) days for filing a new indictment or seven (7) days for amending an indictment or complaint or for filing a new complaint. During the seven-day period for making the motion and during the time specified by the order, if such motion is made, dismissal of the indictment or complaint shall be stayed. If the prosecution does not make the motion within the seven-day period or if the indictment or complaint is not amended or if a new indictment or complaint is not filed within the time specified by the order, the defendant shall be discharged and further prosecution for the same offense shall be barred unless the prosecution has appealed as provided by law, or unless the defendant is charged with murder and the court has granted a motion to dismiss on the ground of the insufficiency of the evidence before the grand jury. In misdemeanor cases and also in gross misdemeanor cases under Minn.Stat. § 169.121 or Minn.Stat. § 169.129 dismissed for failure to file a timely complaint within the time limits as provided by Rule 4.02, subd. 6(3), further prosecution shall not be barred unless additionally a judge or judicial officer of the court has so ordered.
(Emphasis added.)
This rule was drafted, as were all the rules included in the Minnesota Rules of Criminal Procedure, by an advisory committee composed of eminently qualified prosecutors, defense attorneys, and judges, all of them fair-minded and well-acquainted with the day-by-day practicalities of the practice of criminal law. The rules they drafted are plain and straightforward, and, it seems to me, the rules mean what they say. Consequently, I cannot comprehend any basis for the majority’s conclusion that “the same offense” means “an offense that is different from, in addition to, or greater in degree than the offense charged in the original indictment.” (Op. at 130.)
My puzzlement over this wholesale revision of the language of Rule 17.06, subd. 4(3) is intensified by the fact that the term “offense” has for many years had, in the context of the criminal law, a commonly understood meaning. The Minnesota Criminal Code, en*135acted in 1963, followed directly on the heels of the Model Penal Code (MPC), which was drafted over a 10-year period culminating in its adoption by the American Law Institute in 1962. Throughout the MPC the term “offense” is tied to a crime described in a particular section of the Code. MPC § 1.05(1) distinguishes “conduct” from “offense”:
No conduct constitutes an offense unless it is a crime or violation under this Code or another statute of this State.
The explanatory note to section 1.05 elucidates in these words:
Subsection (1) provides that no conduct constitutes an offense unless it is defined as a crime or violation by statute, thus abolishing common law offenses.
MPC § 1.07 sets limits for prosecution and conviction of multiple offenses:
(1)When the same conduct of a defendant may establish the commission of more than one offense, the defendant may be prosecuted for each such offense. He may not, however, be convicted of more than one offense ⅜ * *.2
That provision found its way into the 1963 Minnesota Criminal Code as Minn.Stat. §§ 609.035 and 609.04. Minn.Stat. § 609.035 provides as follows:
Subdivision 1. Except as provided in subdivision 2, and in sections 609.251, 609.585, 609.21, subdivisions 3 and 4, 609.2691, 609.486, 609.494, and 609.856, if a person’s conduct constitutes more than one offense under the laws of this state, the person may be punished for only one of the offenses and a conviction or acquittal of any one of them is a bar to prosecution for any other of them. All the offenses, if prosecuted, shall be included in one prosecution which shall be stated in separate counts.
Subd. 2. (a) When a person is being sentenced for a violation of a provision listed in paragraph (f), the court may sentence the person to a consecutive term of imprisonment for a violation of any other provision listed in paragraph (f), notwithstanding the fact that the offenses arose out of the same course of conduct, subject to the limitation on consecutive sentences contained in section 609.15, subdivision 2, and except as provided in paragraphs (b), (c), and (d) of this subdivision.
(b) When a person is being sentenced for a violation of section 169.129 the court may not impose a consecutive sentence for a violation of a provision of section 169.121, subdivision 1, or for a violation of a provision of section 171.20, 171.24, or 171.30.
(e) When a person is being sentenced for a violation of section 171.20, 171.24, or 171.30, the court may not impose a consecutive sentence for another violation of a provision in chapter 171.
(d) When a person is being sentenced for a violation of section 169.791 or 169.797, the court may not impose a consecutive sentence for another violation of a provision of sections 169.79 to 169.7995.
(e) This subdivision does not limit the authority of the court to impose consecutive sentences for crimes arising on different dates or to impose a consecutive sentence when a person is being sentenced for a crime and is also in violation of the conditions of a stayed or otherwise deferred sentence under section 609.135.
(f) This subdivision applies to misdemeanor and gross misdemeanor violations of the following if the offender has two or more prior impaired driving convictions as defined in section 169.121, subdivision 3:
(1) section 169.121, subdivision 1, driving while intoxicated;
(2) section 169.121, subdivision la, testing refusal;
(3) section 169.129, aggravated driving while intoxicated;
(4) section 169.791, failure to provide proof of insurance;
(5) section 169.797, failure to provide vehicle insurance;
*136(6) section 171.20, subdivision 2, operation after revocation, suspension, cancellation, or disqualification;
(7) section 171.24, driving without valid license;
(8) section 171.30, violation of condition of limited license; and
(9) section 609.487, fleeing a peace officer.
Minn.Stat. § 609.04, subd. 1, deals with conviction of a lesser offense:
Upon prosecution for a crime, the actor may be convicted of either the crime charged or an included offense, but not both. * * * *
In my opinion the common thread of distinction between “conduct” and “offense” which runs through the Minnesota Criminal Code, as well as the MPC, precludes construing the plain language of rule 17.06, subd. 4(3), Minn.R.Crim.P. to mean something quite different from what it says.
The majority justifies its rewriting of the rule by announcing that the rule addresses only its application with respect to double jeopardy — making it a rule of substantive allowance rather than procedural limitation. It seems to me that that assumption is based on a misconception of the purpose of procedural rules. Certainly, procedural rules are not intended to define a constitutional right or to create an expanded version of a constitutional right. To that extent I agree with the majority and the lower courts that the defendant’s argument that Rule 17.06, subd. 4(3), Minn.R.Crim.P. affords additional protection against double jeopardy is without merit. Consequently, I look on double jeopardy as nothing more than a tangential concern here.3
It seems to me that when Rule 17.06, subd. 4(3) is viewed as a single strut or prop in the structure formed by the Minnesota Rules of Criminal Procedure and is read in the context of the whole bundle of criminal rules, it becomes apparent that Rule 17.06, subd. 4(3) is a rule of limitation which addresses a concern entirely different from double jeopardy.
Pursuant to Rules 10.01 and 10.04, Minn. R.Crim.P., motions, including a motion to dismiss an indictment, are to be made in writing and served on opposing counsel prior to the omnibus hearing unless the court for good cause shown permits the making and service of a motion at a later time. Rule 11 makes it clear that all pretrial motions and all issues raised at the omnibus hearing are to be determined prior to trial (with, perhaps, the exception of rulings on Spreigl evidence). Rule 11.05 provides for amendment of the complaint. Rule 17.01 prescribes prosecution by indictment of any offense punishable by life imprisonment and punishment of “[a]ny other offense defined by state law” by either indictment or complaint. Rule 17.02 sets out the nature and content of indictments and complaints.
Rule 17.05 provides for amendment of indictment or complaint “at any time before verdict or finding if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced.” Rule 17.06, subd. 2 sets out a nonexclusive list of grounds for dismissal of an indictment or complaint, and Rule 17.06, subd. 4 describes the effect of the determination of a motion to dismiss and sets out with particularity the effect of dismissal for a curable defect.4
There is, as we know, no statute of limitations barring prosecution for any degree of murder. Minn.Stat. § 628.26(a) (1992). There are, however, statutory periods of limitation governing the initiation of prosecution *137for violation of other sections of the Minnesota Criminal Code. Minn.Stat. § 628.26(b)-(h) (1992). For reasons which seem to me both obvious and worthy, these statutory limitations are supplemented by Rule 17.06, subd. 4(3), which provides that when an indictment or complaint has been dismissed for a defect — including dismissal for failure to file a timely complaint pursuant to the time constraints of Rule 4.02, subd. 5(3) — which could be cured by amendment or issuance of a new charging document “further prosecution for the same offense shall not be barred.” (Emphasis added.) By this provision Minnesota has done by rule what the United States has accomplished by statute. 18 U.S.C. § 3288 (1988) (indictments and information dismissed before period of limitations). That is to say, Rule 17.06, subd. 4(3) stays dismissal and both tolls the statutory limitation period until the prosecution is reinstituted and sets a new time limitation within which prosecution must be reinstituted. The rule gives the prosecutor 7 days after notice of entry of the order granting the motion to dismiss to move to continue the ease for the filing of a new or amended indictment or complaint. The rule limits the continuance to not more than 7 days for an amendment or for the filing of a new complaint and to not more than 60 days pending the filing of a new indictment. If the prosecutor fails to meet the time constraints imposed by Rule 17.06, subd. 4(3), then any further prosecution is barred unless the prosecutor has appealed the dismissal or unless the charge is murder and dismissal was granted on the ground of the insufficiency of the evidence before the grand jury. Rule 17.06, subd. 4(3) does not govern a dismissal for an incurable defect. Accordingly, if the dismissal was for insufficiency of the evidence then available to the prosecutor to establish probable cause, reprosecution is permitted if evidence later discovered does establish probable cause.5 The bar of all further prosecution is raised not by a rule-made form of double jeopardy protection tantamount to acquittal for all crimes and higher degrees of the same crime not contained in the original crime. The bar is raised by the period of limitation spelled out in Rule 17.06, subd. 4(3). See State v. Serstock, 402 N.W.2d 514, 520 (Minn.1987); State v. Viergutz, 288 N.W.2d 693 (Minn.1980).
As I earlier remarked, the limitation provisions of Rule 17.06, subd. 4(3) are both obvious and worthy. Certainly, there is no reason to foreclose prosecution timely commenced because of some curable defect in the complaint or indictment. The purpose of Rule 17.06, subd. 4(3) is to permit the prosecutor to cure, fix or repair the “curable defect” in the charging document so that the prosecution can be reinstituted.6 The short time frame set in Rule 17.06, subd. 4(3) seems to me a suitable recognition that the defect in the charging instrument is delaying trial of the charge against the defendant and that the matter should be resolved as soon as is reasonably possible.
Finally, in view of the majority’s discussion of prosecutorial vindictiveness, it may not be amiss to comment that in my opinion the conduct of the prosecutor in submitting the matter to a successor grand jury and limiting his instructions to the elements of first-degree murder, but excluding the instructions he had given the original grand jury on the elements of second- and third-degree murder and first- and second-degree manslaughter, could well support an inference of prosecuto-rial vindictiveness. That determination, however, is one of fact to be found by the district judge, whose decision that there was no vindictiveness I do not intend to second-guess. Of course, because I believe Rule 17.06, subd. 4(3) limits the resubmission of the matter to the grand jury to an indictment for third-degree murder, that conclusion eliminates the opportunity for vindictiveness and all *138reason for second-guessing the district court judge.
For all the foregoing reasons, I would reverse the court of appeals and remand to the district court for further proceedings pursuant to Rule 17.06, subd. 4(3), Minn. R.Crim.P.
. Minn.R.Crim.P. 17.06, subd. 4(3) provides in part as follows:
If the dismissal [of the charging instrument] is for * * * a defect that could be cured or avoided by an amended or new indictment, or complaint, further prosecution for the same offense shall not be barred * * *. (Emphasis added.)
. The explanatory note for MPC § 1.07 includes this statement:
* * *
Section 1.07 states a general rule barring separate trials for multiple offenses based on the same conduct or arising from the same criminal episode, when those offenses are within the jurisdiction of the same court and are known to the prosecuting officer at the time of the original trial. * * * *
. Minnesota has, I believe, gone beyond the double jeopardy law articulated by the United States Supreme Court by legislative mandate. In State v. Jackson, 363 N.W.2d 758, 760 (Minn.1985), this court stated that Minn.Stat. § 609.04 "expressly prohibits multiple convictions which might not be prohibited by the Double Jeopardy Clause.”
. No mention is made in the rules of the effect of a dismissal for a noncurable defect; neither does the rule describe what constitutes a curable or noncurable defect. It is apparent, however, from the comment to the rule and from case law that the unavailability of sufficient evidence to establish probable cause makes an indictment or complaint noncurably defective. If, however, the prosecutor later discovers evidence which establishes probable cause, the prosecutor may again submit the matter to a grand jury.
. The time for reprosecution after dismissal of the charging instrument for a noncurable defect is limited by the statutory limitation period.
. "Remstitute” is the term used in the advisory committee’s comment to describe the prosecutor's authority with respect to the cure of a curable defect pursuant to Rule 17.06, subd. 4(3). The term indicates to me that the prosecutor is to remstitute prosecution on the same offense, curing only what was defective in the original indictment. Perhaps one could characterize the committee's comment as an instruction to proceed according to an old and inelegant adage: Don't fix what ain't broke.