dissenting in part.
Respectfully, I dissent.
This is another case where we have sustained convictions for both a burglary committed to perform a theft and the theft which occurred as a result of the burglary. In Campbell v. Commonwealth, Ky., 732 S.W.2d 878 (1987), in Dissent, I stated the reasons why multiple convictions of this nature violate the double jeopardy principle:
“It is true that the act of burglary is complete when the criminal enters unlawfully with the intent to commit a crime. However, the act of entering is essentially just a step towards committing the crime that occasioned the entry. Where the crime which was the purpose of the burglary is clearly identified by facts and circumstances, the single criminal intent should not be punished twice. It is only where the burglar commits an additional, gratuitous offense unnecessary to the crime which was the object of the burglary that the state should punish for both offenses....
The statute setting out the crime of ‘criminal attempt,’ KRS 506.010, presents yet another facet of this complication. In the present case, using the language of the statute, the burglary was ‘a substantial step in a course of conduct planned to culminate in commission of the crime.’ Under KRS 506.010(l)(b) such constituted a criminal attempt. KRS 506.110, multiple convictions, provides that the prosecution of an attempt to commit an offense bars prosecution for the offense. A burglary premised on an intent to steal is also an attempted theft, and conviction for both burglary and theft violates the principle in KRS 506.110.” Id. at 882-83.
The fact that here the conviction was not for the theft of the controlled substances, but for knowingly receiving stolen property because of possession occasioned by the theft, makes no significant difference. Consistent reasoning requires application of the double jeopardy principle in either instance. What the Commonwealth has done is carve out “of one act or transaction two or more offenses,” in violation of Section 13 of the Kentucky Constitution, and in violation of the limitation on multiple prosecution in KRS 505.020. Burglary, can, of course, be an offense separate and distinct from receiving stolen property, but not where the proof shows the intent of the burglary was to steal property which is then charged as a separate offense.
Although our Court has consistently rejected my position in this matter, relying on the so-called “Blockburger” rule (Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932)), we should be prepared to reexamine our position because of the United States Supreme Court’s most recent pronouncements on this subject, found in Grady v. Corbin, 495 U.S. -, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990). The so-called Blockburger rule, to the effect that successive prosecutions for the same criminal act or transaction under two criminal statutes is not double jeopardy so long as each statute requires “proof of a fact which the other does not,” is further explained in Grady, as follows (495 *24U.S. at -, 110 S.Ct. at 2093, 109 L.Ed.2d at 564):
“Thus, a subsequent prosecution must do more than merely survive the Block-burger test. As we suggested in Vitale [Illinois v. Vitale, 447 U.S. 410, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980) ], the Double Jeopardy Clause bars any subsequent prosecution in which the government, to establish an essential element of an offense charged in that prosecution, will prove conduct that constitutes an offense for which the defendant has already been prosecuted.”
The essential holding in Grady is that the Blockburger rule cannot be applied in the abstract. The government cannot subdivide a single criminal transaction into multiple offenses simply because these offenses have different statutory elements.
Thus, I dissent from approving conviction for both burglary and receiving stolen property. However, this reasoning does not extend to the appellant’s conviction for trafficking in a Schedule IV substance. I agree with the holding in the Majority Opinion:
“[A] completely new crime was committed when the appellant asked some girls if they ‘did drugs’ and stated that he had ‘a bunch of narcotics.’ That apparent solicitation, together with the quantity of drugs, are sufficient to sustain the trafficking conviction.”
Because of these additional circumstances, it is a separate offense.
COMBS, J., joins this dissent.