Appeal from Circuit Court, Multnomah County. Robert E. Jones, Judge. No. C-59652.
John K. Hoover, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem.
John W. Osburn, Solicitor General, Salem, argued the cause for respondent. With him on the brief was Lee Johnson, Attorney General, Salem.
Schwab, Chief Judge, and Langtry and Thornton, Judges.
A two-count indictment alleged that as part of the "same transaction" defendant committed the following crimes: burglary not in a dwelling (former ORS 164.240), and second degree arson (former ORS 164.030). The basis of the burglary charge was that defendant entered a certain building "with intent to wilfully and maliciously set fire to said building." A jury found defendant guilty of both counts. The circuit court entered judgments of conviction on both counts and sentenced defendant to ten years' imprisonment on each count, the sentences to run concurrently. Relying primarily on State v. Woolard, 259 Or 232, 484 P2d 314, 485 P2d 1194 (1971), defendant contends it was error to convict and sentence him on both counts. We agree.
Three questions are presented: (I) Does Woolard apply retroactively to this case in which judgment was entered before Woolard was decided?; (II) If so, is it necessary to vacate one of what the state calls "redundant concurrent sentences"?; and (III) If so, which sentence is to be vacated?
It is possible that a single transaction or course of conduct will violate different criminal statutes. In such situations a defendant can be charged with and tried for violating all relevant statutes. If the trier of
fact determines such a defendant is guilty of all charges, whether he can be convicted and sentenced on more than one count involves application of the rules of Woolard.
In the Supreme Court's initial Woolard decision, the plurality opinion, expressing the views of three members of the court, stated:
"* * * [W]hether or not a defendant could be convicted either in single or successive trials for two offenses arising out of the same course of conduct depends upon the intent of the legislature in enacting the statutes creating the offense * * *.
"* * * [W]e interpret our statutes to provide that one breaking and entering with the intent to commit larceny can only be convicted and sentenced for ...