¶1dissenting.
¶2I dissent from that part of the majority opinion holding that the petitioner waived his constitutional defense of double jeopardy. The chronological order of events alone, I believe, illustrates the error of the majority’s decision.
¶3The petitioner filed a written plea of former jeopardy on. the ground that he had already been convicted *85by the Pendleton Municipal Court of tbe crime charged in the indictment.
¶4The trial court wrote an opinion that a municipal conviction is not a bar to a subsequent state prosecution for the same offense. For the reasons stated in its opinion, the trial court overruled the plea of former jeopardy.
¶5The petitioner then pleaded not guilty but later changed his plea to guilty.
¶6The majority now holds that, because the petitioner ultimately pleaded guilty after his plea of former jeopardy had been overruled, he now has waived his right to assert that the trial court deprived him of his constitutional rights by overruling his plea of former jeopardy.
¶7The crucial fact is that the court ruled upon petitioner’s plea of former jeopardy. The petitioner pleaded guilty only after the court had held that the petitioner had no defense of former jeopardy.
¶8The majority quotes from State v. Lewis, 113 Or 359, 362, 230 P 543, 232 P 1013 (1925): “ ‘A plea of guilty waives any defect not jurisdictional, and which may be taken advantage of by motion to quash or by plea in abatement.’ ” I do not disagree with this general statement, in its proper context. However, the majority has cited no decisions either from Oregon or any other jurisdiction holding that a subsequent plea of guilty waives the defense of double jeopardy after such a plea of former jeopardy has been made and ruled insufficient as a matter of law.
¶9Rex v. Pope, 7 Alberta L Rep 169, 15 Dominion L Rep 664, 26 West L Rep 659, 5 West W Rep 1070, 22 Can Crim Cas 327 (1914), appears at first reading to be an exception to the last statement. However, a *86careful study of the opinions of the various justices leads to the conclusion that the decision assumes that the appellate court can review the trial court’s overruling of a plea of autrefois convict (a type of former jeopardy plea) although the defendant subsequently pleads guilty. The applicable statutes provided for two pleas: autrefois convict and res judicata. The defense of res judicata was not raised at the trial and, the court held, could only be raised by a plea of not guilty; when the defendant pleaded guilty, he waived that defense. It did not hold that a plea of guilty waived the defense of autrefois convict.
¶10In all the other cases cited by the majority the plea of former jeopardy was either never made or was expressly or impliedly withdrawn before consideration by the court. In none was it considered and overruled by the trial court.
¶11As the majority opinion states: “… a plea of guilty, … waives all defenses that could have been made at the trial of the cause, since, ° * by a plea of guilty, all averments of fact are admitted, ….’ ” Here, the defense of former jeopardy was not one that “could have been made”; it was made and was overruled. And petitioner’s plea of former jeopardy did not raise any “averments of fact.” The court ruled, admitting the facts, that the petitioner was not being put in jeopardy twice.
¶12“… A plea of former jeopardy is not a plea to the merits [Citations], nor is it an attack upon the sufficiency of the indictment. … ‘It is not an inquiry as to anything that accused has or has not done, and therefore is not of a criminal nature.’ [Citation] Therefore, such a plea does not admit as true the facts set forth in the indictment, but points out that if those facts are true the defendant will establish *87that he has been formerly tried for the same crime as alleged and lawfully acquitted or convicted. …” State v. Garrett, 228 Or 1, 4, 363 P2d 762 (1961).
¶13A plea of guilty is not in any way inconsistent with a plea of former jeopardy. In the latter plea the accused states that for the purpose of the plea he admits the facts alleged in the indictment, that those facts alleged constitute a crime, that the court has jurisdiction to try this case. However, he maintains that he has already been tried once for this same offense and that the Constitution of this state and of the United States prohibits another trial.
¶14The theory of the majority may be that the plea of former jeopardy was impliedly withdrawn. It certainly was not expressly withdrawn. But what is there in the action of the petitioner, after the trial court had overruled his plea of former jeopardy, in first pleading not guilty and later guilty, which evidences any intent to withdraw his former jeopardy plea? The not guilty plea dealt with an aspect of the case completely different from that injected by the former jeopardy plea. The not guilty plea denied all the allegations of the indictment. Similarly, the guilty plea concerned the same aspect of the case as the not guilty plea did, — the truth of the allegations in the indictment. The former jeopardy plea in no way concerns the truth or falsity of the matters alleged in the indictment. State v. Garrett, supra. Therefore, the filing of a not guilty or guilty plea is no indication that the petitioner has withdrawn a defense based on entirely different grounds.
¶15There is nothing in the record that hints that the defendant intended to withdraw his plea of former jeopardy. The petition for post-conviction relief alleges: “The petitioner has not at any time waived *88the defense of double jeopardy.” This is admitted by the defendant warden by his demurrer, which was sustained. This allegation may be considered that Mnd of legal conclusion that is of no assistance to the pleader. Nevertheless, the defendant warden never has contended that the petitioner at any time waived his constitutional right. That position originated with the majority of this court.
¶16Just what the defendant should have done to preserve his constitutional rights is not clearly stated by the majority. There is an intimation that he should have appealed from the trial court’s overruling of his plea of former jeopardy. Under our prior decisions interpreting Oregon statutes on criminal appeals, an appeal would not lie from such an order. ORS 138.040 authorizes an appeal only from “a judgment on a conviction.” State v. Haynes, 232 Or 333, 375 P2d 550 (1962), held that an order denying a motion to dismiss the indictment on the ground that the defendant had once been in jeopardy for the same offense was not appealable. No discussion was had that this was in the form of a motion rather than in the form of a plea of former jeopardy. As a plea of former jeopardy is not a plea to the merits, it would be impossible to enter a judgment of conviction thereon.
¶17As an appeal cannot be had from an order overruling a plea of former jeopardy and the majority now holds a plea of guilty waives any objection to the trial court’s overruling of the plea of former jeopardy, the majority must believe that in order to preserve his rights the defendant should have pleaded not guilty and stood trial on that plea.
¶18It is difficult to perceive in what manner a plea of not guilty bolsters a plea of former jeopardy. The statute specifically provides that a plea of former *89jeopardy can be made with or without a plea of not guilty. ORS 135.820. A not guilty plea is directed to the merits of the allegations in the indictment. A former jeopardy plea is not concerned with the merit of those allegations.
¶19Requiring the petitioner to go to trial on a not guilty plea in order to preserve his right to contend that the trial court committed error in overruling his former jeopardy plea would require a completely useless procedure. For the purposes of his former jeopardy plea the petitioner is willing to admit all the facts alleged in the indictment. Nevertheless, the majority would require the state to prove the facts which defendant is willing to admit. No evidence concerning the plea of former jeopardy would be admissible at the trial. The trial court already has held, regardless of what evidence is introduced to support the plea, that it is insufficient because a municipal conviction will not bar a state conviction. Under such circumstances no evidence upon the plea of former jeopardy would be received. ORS 135.870 provides that evidence of former jeopardy is not admissible under a plea of not guilty. A trial under a plea of not guilty would serve no purpose whatsoever.
¶20Any analogy to civil proceedings cannot be completely accurate. However, if in a comparable situation in civil proceedings the defendant is held not to have waived his defense, a defendant in a criminal proceeding certainly should not be held to have waived his constitutional right.
¶21The action of the trial court here in overruling the defense of double jeopardy is procedurally akin to what could arise in a civil proceeding in which the plaintiff is seeking to recover a money obligation. The defendant files an affirmative defense that more than *90six years have elapsed since the obligation accrued, and therefore it is barred. The plaintiff demurs on the ground that the 10-year statute of limitations is applicable, and his demurrer is sustained. Defendant thereupon files an answer admitting the making of the obligation in the amount claimed and that it is unpaid. Such a pleading does not waive the defense of the six-year statute of limitations. The defense of the statute of limitations is a matter apart from the allegations in the complaint. ORS 16.330, 16.400; Lane County v. Bristow, 179 Or 653, 656-657, 173 P2d 954 (1946). A fortiori an accused’s constitutional right not to be placed in jeopardy twice should not be waived by admitting the facts in the indictment after the trial court has overruled his original plea of former conviction.
¶22The majority also holds that, regardless of whether defendant pleaded guilty or not, the trial court’s denial of defendant’s plea of former jeopardy cannot be grounds for post-conviction relief. The majority holds that a denial of due process is the only constitutional infringement that affords grounds for post-conviction relief. With this I cannot agree.
¶23OES 138.530 provides one ground for post-conviction relief is “[a] substantial denial in the proceedings resulting in petitioner’s conviction, or in the appellate review thereof, of petitioner’s rights under the Constitution of the United States, or under the Constitution of the State of Oregon, or both, and which denial rendered the conviction void.”
¶24Nothing in this language restricts relief to a denial of one constitutional right, that of due process. In determining whether or not post-conviction relief should be granted, we have considered whether or not other constitutional guarantees have been violated. *91Tuel v. Gladden, 234 Or 1, 379 P2d 553 (1963) (state constitutional provision directing that punishment should be founded on the principles of reformation, not vindictive justice).
¶25I am of the opinion that there is now properly before us the question of whether the trial court erroneously deprived the defendant of his right to be free from double jeopardy when the trial court overruled defendant’s plea of former jeopardy. I am also of the opinion that the plea was improperly overruled for the reason that a conviction for violation of a municipal ordinance is a bar to a prosecution under a state statute for the same offense. Claypool v. McCauley, 131 Or 371, 283 P 751 (1929), should be overruled and we should revert to the principle announced in State v. Smith, 101 Or 127, 199 P 194, 16 ALR 1220 (1921).