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Duffy v. State3/21/1990
found for every position taken except no case like this one is found invoking conspiracy to commit the burglary and aiding and abetting the more serious aggravated robbery which was a product of the burglary. Using the methodology of this occurrence, we reach a stage of ingenuity of prosecution until division of cases into segments become almost limitless and particularly so if magnification by the inchoate offenses of conspiracy and aiding and abetting are introduced. The broad issue is fundamental to double jeopardy — conviction and dual sentencing for one criminal event. The more specific question here invokes the relationship of burglary to the offense of aggravated robbery as those separate statutes are impacted by the inchoate offenses of conspiracy and aiding and abetting. The basic issue that should have been resolved is whether the burglary, which progressed into the robbery, can be separately charged or should the maximum sentence for Duffy have been limited to the one offense maximum of twenty-five years.
A magnificent play on words defined in legislative intent is invoked in these thousands of cases. I dissent because what we do is conceptually vacuous and logically indefensible. Burglary in this case involved illegal entry with intent to commit a felony. The felony committed in this case was aggravated robbery. It would have been exactly the same in this case if Duffy had been charged with the offense he committed, aiding and abetting aggravated burglary. However, by charging down to burglary, the prosecutor was dividing up what was otherwise a unitary offense involving the same evidence of what occurred and consequently achieving consecutive sentences exceeding statutory maximums as a penalty. This is what our forefathers feared when they constitutionally provided prohibitions against double jeopardy as being twice sentenced for one offense or twice tried for the same offense. Comment, Twice in Jeopardy, 75 Yale L.J. 262 (1965).
D. What Duffy does not present as issues are separate charges of conspiracy and the principal offense. With the exception of a few jurisdictions where conspiracy may still be considered a lesser included offense, the general and accepted rule, including justification in the idea of sequential events as separable crimes, is that separate charges and separate sentences can be achieved by the dichotomy of conspiracy to commit and commission of the principal offense. Pereira v. United States, 347 U.S. 1, 74 S.Ct. 358, 98 L.Ed. 435 (1954); United States v. Finazzo, 704 F.2d 300 (6th Cir.), cert. denied 463 U.S. 1210, 103 S.Ct. 3543, 77 L.Ed.2d 1392 (1983); State v. Johns, 184 Conn. 369, 439 A.2d 1049 (1981); People v. Carter, 415 Mich. 558, 330 N.W.2d 314 (1982); State v. Carey, 285 N.C. 509, 206 S.E.2d 222 (1974). Compare, however, Garcia v. State, 774 P.2d 623 (Wyo. 1989) and Schultz, 751 P.2d 367 with Birr, 744 P.2d 1117, where in the latter case, the separately chargeable conspiracy was not charged instead of the lesser included offense as a constituent of the felony murder.
Aiding and abetting as an inchoate offense with identical exposure for criminal punishment as the principal offense can also be filed separately from conspiracy without creating a double jeopardy constitutional violation. This principle follows from the nature of conspiracy being severable from the principal offense since aiding and abetting is identically treated as a principal offense. United States v. Herbert, 698 F.2d 981 (9th Cir.), cert. denied 464 U.S. 821, 104 S.Ct. 87, 78 L.Ed.2d 95 (1983); United States v. Valencia, 492 F.2d 1071 (9th Cir. 1974); State v. Spearin, 477 A.2d 1147 (Me. 1984); Carter, 330 N.W.2d 314; People v. Hamp, 110 Mich. App. 92, 31
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