concurring in part and dissenting in part.
I concur with the majority that the defendant’s conviction for burglary as a class B felony as charged in Count III should be reversed. I also agree with the majority that the defendant’s conviction for burglary as a class B felony as charged in Count V should be affirmed. I further agree with the majority that the trial court did not commit reversible error when it denied the defendant’s motion for severance of the counts for trial purpose. However, I must respectfully disagree and hereby dissent from the majority’s conclusion to remand this case to the trial court for imposition of sentencing for theft, which the trial court determined had merged into the sentencing for burglary.
Just as the “federal Bill of Rights ... was designed to protect people against the national government,” Indiana’s Bill of Rights was written to protect the civil liberties of citizens “from the excesses of government.” Chief Justice Randall T. Shepard, Second Wind for the Indiana Bill of Rights, 22 Ind. Law Rev. 575, 576 (1989). In fact, our Bill of Rights “afforded Hoosiers rights which the federal Constitution did not.” Id. at 577. Consistent with this premise, the protections found in the Double Jeopardy clause of our Bill of Rights have been found to be broader than those defined by federal double jeopardy jurisprudence. See Richardson v. State, 111 N.E.2d 32, 53-54 (Ind.1999).
My research revealed no case in which an appellate court has held that a trial court erred when it did not impose a sentence for one of a number of offenses which the defendant had been found guilty of committing. In Reaves v. State, 586 N.E.2d 847, 853 (Ind.1992), upon facts which I acknowledge to be distinguishable, the State argued that a remand was necessary for sentencing on such a conviction for which no sentence had been imposed, but our supreme court found no error.
Effectively, the majority has concluded our Double Jeopardy clause mandates that the trial court sentence Payne on both the burglary and theft convictions. Had the trial court done so, it is arguable that Payne would not have succeeded with an appeal claiming violation of his rights under Indiana’s Double Jeopardy clause. Nevertheless, I cannot agree — given the voluminous quantity of precedents that emphasize the trial court’s discretion in sentencing — that the Bill of Rights of our Constitution requires that we remand this case to the trial court for imposition of sentencing for the crime of theft.
Therefore, I would affirm the trial court on this issue.