dissenting.
I believe that the majority’s holding that defendant can receive only one sentence for aggravated murder and rape illustrates a misinterpretation of the legislature’s intent regarding the penalty for aggravated felony murder, as well as an overly narrow interpretation of the facts. Accordingly, I dissent.
The majority apparently theorizes that defendant did not pause, reflect and start anew between the completed rape and the attempted rape and, because of this assumption, defendant could not receive separate sentences under State v. Garcia, 288 Or 413, 605 P2d 671 (1980). Further, the majority indicates that, because the jury did not enter a specific finding of the necessary “break” between the rape and attempted rape, the trial judge was without authority to impose separate sentences under State v. Fish, 282 Or 53, 577 P2d 500 (1978).
It is clear that the trial judge, in noting that the court had to base its decision on facts found by the jury, was well aware of the potential application of the Fish case. He determined that it was implicit in the jury’s findings that the rape and attempted rape were sufficiently separated in time by the victim’s escape attempt to justify separate sentences. The majority’s conclusion is in direct contradiction to the trial judge’s express determination. Additionally, it should be noted that defendant made no request for special findings by the jury and defendant does not assign as error the jury’s failure to return a special verdict, as opposed to the general verdict form actually used.
I believe that the trial judge made the proper determination based on the verdict. He appropriately concluded that the initial rape occurred in the bedroom and was completed before the victim escaped to the doorway and screamed that defendant was trying to rape her. One act of rape was committed, for which one sentence could be imposed. Clearly, the victim thought another rape was about to begin, and the jury found that such an attempt did occur. The judge reasoned that the murder was committed in furtherance of the *53attempted rape and therefore based the aggravated murder charge on the attempted rape. Under this analysis, defendant is subject to a separate sentence for aggravated murder.
Perhaps a substantial length of time may not have passed between the rape and attempted rape, but a factfinder could conclude from the evidence that there was a distinct break between the two crimes, sufficient for pause and reflection. Even though the events may have been only one criminal transaction, as alleged in the multiple-count indictment, one could find that defendant had more than one criminal objective: to commit two rapes. The victim was subjected to additional danger and fear during the commission of each crime.
The majority reasons that the legislature considered the aggravating circumstances underlying the felony murder when it established the penalty. Within reason, that is true. See State v. Fish, supra. However, I am satisfied that the legislature never intended to create a carte blanche for criminals to commit crimes such as rape with impunity. If our trial judges do not have the authority to impose an additional sentence in this kind of criminal conduct, there is no disincentive for the successive and immediate commission of one violent crime after another against the same victim. Certainly, the fact that there was a single victim does not provide a rationale for imposing only one sentence when multiple offenses have occurred.
I believe that this defendant was validly convicted of separate offenses and was appropriately sentenced. We should affirm the trial court.1
Joseph, C. J., and Warden and Van Hoomissen, JJ., join in this dissent.Many of the things that I said in my dissent in State v. Atkinson, 80 Or App 54, 722 P2d 9 (1986), are also applicable here.