State v. Woolard
| Decision Date | 19 May 1971 |
| Citation | 259 Or. 232,485 P.2d 1194 |
| Parties | STATE of Oregon, Respondent, v. Mildred Jean WOOLARD, Petitioner. . On Respondent's Petition for Rehearing Filed |
| Court | Oregon Supreme Court |
Lee Johnson, Atty. Gen., and Jacob B. Tanzer, Sol. Gen., Salem, for the petitioner.
No appearance contra.
Plaintiff has filed a petition for rehearing.
Although we remain convinced that our decision, 484 P.2d 314, was correct, we believe that the opinion needs clarification with respect to the choice open to the trial judge in convicting and sentencing a defendant found guilty of both burglary and larceny or some other crime intended at the time of breaking and entering.
The opinion could be interpreted as allowing the trial judge the option of sentencing the defendant either for the crime of burglary or the crime of larceny. We did not intend to so hold. The rationale of the principal opinion is that the breaking and entering essential to the crime of burglary is not to be viewed separate and apart from the ensuing criminal act which the defendant entered to commit. We did not feel that the legislatute would have provided a 15-year penalty if burglary had been looked upon simply as a form of criminal trespass to property--and so we reasoned that the heavy penalty for the crime of burglary was intended to embrace also the penalty for the larceny which might follow. Accepting this assumption of legislative purpose, we do not think that the legislature would have intended to repose in the trial judge the option to sentence for either crime in his uncontrolled discretion. It is more reasonable to assume that if the defendant was found guilty of the crime of burglary, the trial judge would be bound to sentence him for the more serious crime against society. We so interpret the statute.
On the other hand, if the defendant broke and entered with the intent to commit a crime carrying a greater maximum sentence than burglary and the defendant did commit such crime, the trial court would be bound to convict and sentence the defendant for the more serious crime.
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State v. Cloutier
...criminal conduct and charged in the same indictment, relying on this court's decision in State v. Woolard, 259 Or. 232, 484 P.2d 314, 485 P.2d 1194 (1971), which held that a burglary and subsequent larceny could lead only to one conviction and sentence. The state, believing defendant Woolar......
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State v. Pancake
...287 So.2d 721 (Fla.Dist.Ct.App.1974) (burglary with intent to commit rape and assault can have only one sentence); State v. Woolard, 259 Or. 232, 485 P.2d 1194 (1970), reh. denied (burglary and larceny can have only one sentence); Model Penal Code, § 221.1(3) (burglary and theft should have......
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State v. Linthwaite, s. 80-281-C
...with the majority that Cloutier holds only that the Supreme Court's earlier decision in State v. Woolard, 259 Or. 232, 484 P.2d 314, 485 P.2d 1194 (1971), had not been legislatively overruled. However, I do not agree with the majority's suggestion that Cloutier made no new law or that the l......
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State v. Classen
...the testimony was not hearsay and was properly admitted. Defendant was sentenced for both burglary and theft, contrary to State v. Woolard, 259 Or. 232, 484 [31 Or.App. 698] P.2d 314, 485 P.2d 1194 (1971). The issue was not raised at the time of sentencing. In State v. Webber, 14 Or.App. 35......