finding no Section 11 violation where the defendant was convicted of larceny from a house for stealing car keys, and then using those keys to steal the vehicle from the premises
How later courts described this case
- finding no Section 11 violation where the defendant was convicted of larceny from a house for stealing car keys, and then using those keys to steal the vehicle from the premises
- holding offenses requiring different elements of proof are not the same for purposes of the double jeopardy proscriptions
- failure to give OUJI-CR 2d 9-12 harmless in light of the entire record
- relying on Mooney v. State, 990 P.2d 875, 883 (Okla.Crim.App.1999)
Written by the judges who cited it.
The opinion
CHAPEL, Judge,
Concurring in Part and Dissenting in Part:
¶ 1 I disagree with the majority’s disposition of Proposition I. After conducting the appropriate analysis following the statutory directive and well-settled law, I conclude that Davis’s conviction for larceny from the house violates the § 11 prohibition against double punishment because the victim’s purse was not stolen for its own sake; rather, Davis intended to use the keys inside the purse to steal the victim’s truck. 1
¶2 I write separately to take issue with the majority’s unnecessary rejection of the controlling case on Oklahoma’s statutory prohibition against double punishment. The opinion shows the majority simply fails to understand Hale v. State, 2 in which this Court summarized decades of case law to set forth a simple test for determining whether a defendant is subject to punishment twice for an act or omission. Even a cursory review of the statutory language and our subsequent cases show Hale expands neither the statute nor the concept of double punishment. The majority’s claim that the Hale language has caused widespread confusion is unsupported by recent cases or filings before this Court.
*129 ¶ 3 Reasonable persons may reach different results interpreting § 11 using Hale (or any other test), and I respect the majority’s determination that Davis’s conviction for larceny from a house does not violate § 11 using the Hale test. I am left to wonder why the majority, having reached this unremarkable conclusion, insists on fixing problems not raised as error on appeal. 3 Both parties cite Hale without complaint and ar-' gue that Davis’s convictions do or don’t violate § 11 as applied there. There is no reason to “specifically reject our prior cases” applying Hale. I can only conclude the majority is overreaching in order to overturn case law it doesn’t like. This is exactly the sort of judicial activism members of the majority complain of in other cases. 4
. 21 O.S.1991, § 11; Lev. State, 1997 OK CR 55 , 947 P.2d 535, 549 , cert. denied, 524 U.S. 930 , 118 S.Ct. 2329 , 141 L.Ed.2d 702 (1998).
. 1995 OK CR 7 , 888 P.2d 1027 .
. Dodd v. State, 1999 OK CR 29 , 70 OBJ 2382, 2386 (Lumpkin, V.P.J., dissenting), Petition for Rehearing Granted & Opinion Vacated & Withdrawn, 70 OBJ 2952.
. See, e.g, Dodd, 70 OBJ 2382, 2386, 2388 (Lumpkin, V.P.J., and Lile, J., dissenting); Cohee v. State, 1997 OK CR 30 , 942 P.2d 211, 216-218 (Lumpkin, J, concur in part/dissent in part).