On Review from the Court of Appeals.
J. Marvin Kuhn, Deputy Public Defender, Salem, argued the cause for petitioner. With him on the brief was Gary D. Babcock, Public Defender.
Al J. Laue, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Attorney General and John W. Osburn, Solicitor General.
In Banc. McAllister, J. O'Connell, C.J., specially concurring. Bryson, J., specially concurring.
Petitioner was first charged with burglary not in a dwelling.*fn1 The indictment alleged that he broke and entered a certain motel on January 19, 1971, with the intent to commit larceny therein. At the trial on the burglary charge, after the state had rested its case, petitioner moved for a judgment of acquittal. The motion was granted and a judgment of acquittal was entered on the ground that the state's evidence would not support a verdict of guilty. Although the record of the burglary trial was not introduced in evidence in this case, it appears from reported discussion among court and counsel that the motion for judgment of acquittal was made on the specific ground that the evidence showed that the motel was a dwelling and that if the petitioner had committed burglary it was burglary in a dwelling.*fn2
After petitioner was acquitted on the first charge he was indicted for larceny by an indictment alleging the theft of a television set from the same motel on the same date as that alleged in the burglary indictment. Petitioner entered a plea of former jeopardy, which was rejected by the trial court. Petitioner was then found guilty by the jury of the larceny charge
and appealed. The Court of Appeals affirmed. State v. Fair, 8 Or App 351, 493 P2d 182 (1972).*fn3
As the burglary and larceny charges both arose out of the same transaction, this case poses the question of the retroactivity of our decision in State v. Brown, 262 Or 442, 497 P2d 1191 (1972). In State v. Clifton, 240 Or 378, 401 P2d 697 (1965) we said that no question of retroactivity arose in a case which had not been finally disposed of on appeal at the time the new rule was announced. In later cases, however, we have abandoned that principle, and have closely followed the retroactivity rules adopted by the United States Supreme Court. In Linkletter v. Walker, 381 U.S. 618, 85 S Ct 1731, 14 L Ed 2d 601 (1965) and in Tehan v. Shott, 382 U.S. 406, 86 S Ct 459, 15 L Ed 2d 453 (1966), the Supreme Court assumed, as we did in Clifton, that a decision which was not applied retroactively nevertheless applied to cases which had not been finally disposed of at the time it was announced. A short time later, however, the Supreme Court decided Johnson v. New Jersey, 384 U.S. 719, 86 S Ct 1772, 16 L Ed 2d 882 (1966), in which it held that the rules announced in Escobedo v. Illinois, 378 U.S. 478, 84 S Ct 1758, 12 L Ed 2d 977 (1964) and Miranda v. Arizona, 384 U.S. 436, 86 S Ct 1602, 16 L Ed 2d 694, 10 ALR3d 974 (1966) would apply only to trials which began after the dates of those decisions.
Since Johnson the Supreme Court has continued to specify exactly when new rules should take effect.
In Stovall v. Denno, 388 U.S. 293, 87 S Ct 1967, 18 L Ed 2d 1199 (1967) it held that the "lineup" rules announced in Gilbert v. California, 388 U.S. 263, 87 S Ct 1951, 18 L Ed 2d 1178 (1967) and United States v. Wade, 388 U.S. 218, 87 S Ct 1926, 18 L Ed 2d 1149 (1967) would apply only to lineups which took place after the date of those decisions. In Desist v. United States, 394 U.S. 244, 89 S Ct 1030, 22 L Ed 2d 248 (1969) the Court held that Katz v. United States, 389 U.S. 347, 88 S Ct 507, 19 L Ed 2d 576 (1967) extending the prohibition on electronic surveillance without a warrant to cases in which no physical intrusion was involved, would apply only to cases in which the prosecution sought to introduce the fruits of its eavesdropping into evidence after the date of the Katz decision. In Williams v. United States, 401 U.S. 646, 91 S Ct 1148, 28 L Ed 2d 388 (1971) it held that Chimel v. California, 395 U.S. 752, 89 S Ct 2034, 23 L Ed 2d 685 (1969) would apply only to searches conducted after Chimel was decided.
In Johnson the Supreme Court said:
"* * * Of course, States are still entirely free to effectuate under their own law stricter standards than those we have laid down and to apply those standards in a broader range of cases than ...