Duffy v. State3/21/1990
969). Courts have generally used two tests in deciding whether a conviction violates the multiple punishment component of the double jeopardy prohibition. Under the "same evidence test," the question to ask is "whether each of the offenses charged requires proof of an additional fact that is not necessary to the other." Johnson v. State, 611 P.2d 1137, 1140 (Okla. Crim. App. 1980), cert. denied 449 U.S. 1132, 101 S.Ct. 955, 67 L.Ed.2d 120 (1981), rehearing denied, 450 U.S. 1026, 101 S.Ct. 1734, 68 L.Ed.2d 221 (1981). Therefore, an act can violate more than one statute if each statute requires proof of an additional fact that the other does not, and multiple punishments are not prohibited, even though each offense may arise from the same act or criminal episode. Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932). Under the "same transaction test," one must determine "whether the offenses charged were parts of the same criminal act, occurrence, episode or transaction" and, if so, multiple punishments should be barred by the double jeopardy clause. Johnson, 611 P.2d at 1141.
When the pros and cons of each test were considered in Johnson, it was noted that just "because we treat the double jeopardy issue in one case by using one test [does not mean that] this Court will not apply the other test in appropriate cases." Id. at 1144. The Court made clear its purpose when it said:
e merely follow the collective wisdom of this Court's prior decisions and elect the course which allows this Court to utilize the necessary tools to accomplish the task before it. In taking this course, we do nothing more than elevate the distinct purposes of the Double Jeopardy Doctrine to the equal dignity and reverence each [test] deserves.
Id. Based on the foregoing, we examine appellant's situation to determine which test best serves the underlying purposes of the double jeopardy prohibition against multiple punishments for the same offense.
* * * The question remains, however, whether appellant can be convicted of two counts of one offense arising out of the same transaction. The answer depends on whether one determines that the "criminal episode involves separate and distinct offenses, consisting of different elements or dissimilar proof." Weatherly v. State, 733 P.2d 1331, 1336 (Okla. Crim. App. 1987). * * * Offenses are distinct and separate if they "are not mere means to some other ultimate objective, nor are they offenses included in some other offense, nor are they merely different incidents or facets of some primary offense." Weatherly, 733 P.2d at 1336-37 (citing Clay v. State, 593 P.2d 509, 510 (Okla. Crim. App. 1979)).
In interesting conclusion, the court stated:
prosecutor cannot stack multiple charges in situations such as this, to "offer the jury a choice — a situation which is apt to induce a doubtful jury to find the defendant guilty of the less serious offense rather than to continue the debate as to his innocence. Cichos v. Indiana, 385 U.S. 76, 81, 87 S.Ct. 271, 273, 17 L.Ed.2d 175 (1966) (Fortas, J., dissenting from dismissal of certiorari).
Id. at 111.
Other cases include State v. Eppler, 362 N.W.2d 315 (Minn. 1985), multi-item shoplifting is one criminal offense and Hodges, 386 N.W.2d 709, burglarous entry of one dwelling justifies only one burglary conviction where the three persons were present in the house, which incidentally did not affect his 238 month sentence for felony murder where no consecutive sentences were given. The Michigan court in Adams, 339 N.W.2d at 689 deleted one of the two convictions for possession of a firearm during the commission of a f
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