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Duffy v. State3/21/1990
elony. Also looking at the facts of the occurrence, conviction for both burning a dwelling and arson of insured property was reversed for the second concurrent sentence in People v. Kedziora, 125 Mich. App. 150, 336 N.W.2d 460 (1983) by concluding the criminal could not be guilty of burning insured property without committing arson.
For the fatal beating of a child, the defendant was convicted and sentenced for murder, involuntary manslaughter, reckless homicide, battery, child neglect and criminal confinement in Strong, 538 N.E.2d 924. The court related that only one killing and only one sentence could be imposed for the killing and reversed all convictions except murder and criminal confinement. The exceptionally detailed case of Corbin, 74 N.Y.2d 279, 545 N YS.2d 71, 543 N.E.2d 714 considered successive prosecutions of driving while under the influence and vehicular homicide with double jeopardy applied to deny the successive prosecutions. Cf. Nowack v. State, 774 P.2d 561 (Wyo. 1989).
A three count conviction of theft, attempted theft and entering a vehicle with intent to commit theft was reduced by application of offense inclusion to one charge in Carter v. State, 162 Ga. App. 44, 290 S.E.2d 143 (1982). See likewise Tompkins v. McMickle, 172 Ga. App. 62, 321 S.E.2d 797 (1984), aggravated assault merged into attempted armed robbery. The court applied alternative tests for dual sentence preclusion by both an analysis of the facts presented (factual review) and the charges presented as a matter of law (legal review). Hambrick v. State, 256 Ga. 148, 344 S.E.2d 639 (1986). Carey, 206 S.E.2d 222 presented the included felony of armed robbery merged into the felony murder crime, but the conspiracy charge remained a viable additional charge.
By statutory provision, the transaction rule was abrogated expressly in Florida, but the statute retained the exclusion of lesser included offense. Borges, 415 So.2d 1265. These principles were then addressed in Lindsey v. State, 416 So.2d 471, 472 (Fla.App. 1982), rev'd on other grounds, but otherwise affirmed on this issue, 446 So.2d 1074 (Fla.App. 1984) of "how many ways a single criminal episode may be carved up to sustain separate crimes and sentences * * *." The court authenticated a sentence of burglary, robbery and false imprisonment. See also Lindsey, 446 So.2d 1074. Those decisions were followed by Carawan v. State, 515 So.2d 161 (Fla. 1987), which considered dual convictions of aggravated battery and attempted manslaughter. The Florida constitutional clause of double jeopardy is identical to that of Wyoming. The court recognized that the power to define offenses and punishment was in the legislature.
"The argument seems to us irresistible, and we do not doubt that the Constitution was designed as much to prevent the criminal from being twice punished for the same offence as from being twice tried for it."
Indeed, the prohibition against double jeopardy was aimed as much at the evil of multiple punishments for single offenses as at the evil of retrial for the same offense.
Id. at 164 (quoting Ex parte Lange, 85 U.S. at 173 and citing Note, A Definition of Punishment for Implementing the Double Jeopardy Clause's Multiple-Punishment Prohibition, 90 Yale L.J. 632, 635 n. 16 (1981)).
The court further recognized:
At the same, however, we recognize that the power to define crimes and punishments in derogation of the common law inheres in the legislative branch, * * *, subject to constitutional imitations. It is presumed, however, that this legislative prerogative is not exercised by punishing the same offense under more than one statutory provision, since t
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