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Duffy v. State3/21/1990
2-401, larceny with force or injury as aggravated robbery as compared with larceny with force or injury while involved in the burglary, W.S. 6-3-302. In each case, we have the same elements, force or injury, the connective offense and statutory punishment provided not less than five years nor more than twenty-five years. In Wyoming, life or death sentences are almost the only cases where ordered confinement exceeds twenty-five years. Any change should be made by the legislature and not by prosecutorial and judicial ingenuity.
VI. WHAT DOES DUFFY II STAND FOR?
An indiscriminate and indeterminate net is created lacking certainty whether woven to catch whales or minnows. If the justice delivery function of the double jeopardy intent case law is to recognize the right of the legislature to establish prohibited criminal conduct, that rationality and consistency must be applied to Blockburger elements and evidence as well as concurrent and successive trials. There are two ways to increase the detriment to be assessed for conviction of criminal conduct. The first is to statutorily, judicially, or administratively increase confinement time. The second is to divide up the criminal behavior into separately punishable crimes. The first is a legitimate exercise of society's decision. The second attacks the basic constitutional interest long followed with its accommodative ancient history prohibiting double jeopardy. Unfortunately, the constitutional interest is disregarded when the mindlessness of today intermixes both. In first approach, decision and discretion are examined by the legislature and the judiciary. Operationally, the second "answer" accomplishes a proven delegation to the prosecution as the result to be achieved. In the real world within the criminal justice delivery system, this is called leverage.
Among the multitude of inconsistent pathways chosen to segregate the violated double jeopardy right from responsibility for actual commission of more than one offense, I would find the double jeopardy application of the New Jersey court in State v. Yoskowitz, 116 N.J. 679, 563 A.2d 1 (1989) an alternative application of the elements on the evidence test to have most narrowly achieved a determinably consistent and essentially validated result. See likewise State v. Moore, 109 N.M. 119, 782 P.2d 91, 99, cert. denied 109 N.M. 54, 781 P.2d 782 (1989).
VII. CONCLUSION
In principle, I disagree with the majority because a presumptive concept is applied to produce an absurd result. In historical concern, I differ because, with the legitimate and liberal creation of new crimes in the recent past by legislative enactment, we now add offense multiplication for prosecution to eliminate completely the legislative principle of similar punishment for identical offenses. The attitude of anything goes as a principle of criminal law administration is unacceptable.*fn22 The legislature by statute and not the prosecution by duplicate charges should establish the maximum punishment for criminal conduct. As a society, we should return to the basic understanding of our fundamental constitutional concepts. In this case, it is the preclusion of double jeopardy.
Consequently, for Duffy II, I again dissent.
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