Duffy v. State3/21/1990
2 N.W.2d 175 (1981). Cf. United States v. Mourad, 729 F.2d 195 (2nd Cir.), cert. denied 469 U.S. 855, 105 S.Ct. 180, 83 L.Ed.2d 114 (1984), cert. denied 472 U.S. 1007, 105 S.Ct. 2700, 86 L.Ed.2d 717 (1985). See also Garrett v. United States, 471 U.S. 773, 105 S.Ct. 2407, 85 L.Ed.2d 764, reh'g denied 473 U.S. 927, 106 S.Ct. 20, 87 L.Ed.2d 698 (1985) and United States v. Thomas, 887 F.2d 1341, 1345 (9th Cir. 1989).
Case law, where consecutive sentences were not provided, does not present the same duplicate punishment concerns within the double jeopardy prohibition. See People v. Ratcliffe, 124 Cal.App.3d 808, 177 Cal.Rptr. 627 (1981).
Likewise, sequentially and severable criminal events for separate crimes are not presented by this case as justification for a double application of statutory sentences. State v. Washington, 132 Ariz. 429, 646 P.2d 314 (1982); State v. Lindsey, 446 So.2d 1074 (Fla. 1984); State v. Mendonca, 68 Haw. 280, 711 P.2d 731 (1985); State v. Hill, 10 Kan. App. 2d 607, 706 P.2d 472 (1985); State v. Roudybush, 235 Kan. 834, 686 P.2d 100 (1984); State v. Dubish, 234 Kan. 708, 675 P.2d 877 (1984); Wilson v. Com., 695 S.W.2d 854 (Ky. 1985); Hunnicutt v. State, 755 P.2d 105 (Okla. Cr. 1988), to be compared with State v. Ah Choy, 780 P.2d 1097 (Hawaii 1989).
Separate victims of criminal conduct are also not presented. People v. Adams, 128 Mich. App. 25, 339 N.W.2d 687 (1983). See the comparison of robbery constituting multiple offenses with multiple victims and burglary as only one offense in State v. Hodges, 386 N.W.2d 709 (Minn. 1986).
E. What Duffy II does present in terms of double jeopardy is prosecution of a non-sequential event transactionally limited to one course of behavior. The crime was committed by telephone calls made in advance of any criminal action. There was only one victim in the burglary/robbery crime. The charges filed essentially invoke a lesser included offense to the aggravated robbery. The occurrence progressed from initial burglary as an integrated event with one interest of the criminal. That interest produced a course of events leading to a robbery. Two inchoate offenses were prosecutorially created out of the same action for which consecutive sentences were given to exceed the maximum permitted for any single charged offense.
This case also presents dual crimes charged in a circumstance where a lesser included offense concept is implicated by a burglary occurrence for the purpose of commission of the aggravated robbery. To be compared are the duplication denied cases, State v. Bartowsheski, 661 P.2d 235 (Colo. 1983); State v. Flynn, 14 Conn. App. 10, 539 A.2d 1005, cert. denied ___ U.S. ___, 109 S.Ct. 226, 102 L.Ed.2d 217 (1988); Borges v. State, 415 So.2d 1265 (Fla. 1982); Ah Choy, 780 P.2d 1097; Strong v. State, 538 N.E.2d 924 (Ind. 1989); Carey, 206 S.E.2d 222 and the singularly important and well considered case of Corbin v. Hillery, 74 N.Y.2d 279, 545 N.Y.S.2d 71, 543 N.E.2d 714, cert. granted ___ U.S. ___, 110 S.Ct. 362, 107 L.Ed.2d 349 (1989). See also Mourad, 729 F.2d 195.
The federal bank robbery cases are informative by including a concept which prohibits duplicitous charging of incidents of that course of criminal conduct. United States v. Moore, 688 F.2d 433 (6th Cir. 1982); United States v. Lawson, 683 F.2d 688 (2nd Cir. 1982); United States v. Leek, 665 F.2d 383 (D.C. Cir. 1981); United States v. Wright, 661 F.2d 60 (5th Cir. 1981).
In this case, the majority agrees that lesser included offenses cannot be used to create a second punishment:
In later cases, the Supreme Court has held that the same evidence may not be used to sustain multiple
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