"[W]e are free to choose the degree of retroactivity or prospectivity which we believe appropriate to the particular rule under consideration, so long as we give federal constitutional rights at least as broad a scope as the United States Supreme Court requires"
How later courts described this case
- "[W]e are free to choose the degree of retroactivity or prospectivity which we believe appropriate to the particular rule under consideration, so long as we give federal constitutional rights at least as broad a scope as the United States Supreme Court requires"
- synthesizing approach from Evans and earlier post-conviction cases
Written by the judges who cited it.
The opinion
BRYSON, J.,
specially concurring.
The defendant stole a color television set from the Truck Ranch Motel, Pendleton, Oregon. He was first tried by a jury for burglary not in a dwelling, ORS 164.240. After the parties rested, the court entered a judgment of acquittal because he determined the motel was a dwelling. The defendant was then, in the case at bar, charged with grand larceny of the television set, ORS 164.310. The jury found the defendant guilty.
The crime of larceny requires proof of additional and different material facts or evidence than those required for conviction of the charge of burglary not in a dwelling. In accordance with the reasoning stated in my dissenting opinion in Stale v. Brown, 262 Or 442, 497 P2d 1191 (1972), I do not reach the question of retroactivity of the rule laid down by the majority in Brown. I would hold defendant’s conviction of grand larceny to be valid.
Notwithstanding the above, I concur with Mr. Justice McAllister’s opinion wherein it is stated that the *393 rule laid down in Brown should be applicable “only when the prosecution upon which a former jeopardy claim is based began after May 24,1972, the date Brown was decided.”