concurring in part and dissenting in part.
I agree with the majority’s conclusion that the trial court erred in entering convictions on all six burglary counts against defendant. I disagree, however, with its conclusion that the offenses for which defendant was convicted were not part of a single criminal episode.
The majority relies upon State v. Fitzgerald, 267 Or 266, 516 P2d 1280 (1973), for its reasoning and concludes *298that because “a complete account of any one of the unlawful entries could be proven without reference to the others,” the burglaries must have been three separate transactions. I believe that the majority’s interpretation of Fitzgerald is incorrect.
In Fitzgerald, the defendant was charged with escaping from a correctional facility and with unauthorized use of a vehicle. The trial court rejected his motion to sever the charges, and he was convicted on both counts. On appeal, the Supreme Court concluded that the joinder was improper because the two offenses were not “so closely linked in time, place and circumstance that a complete account of one charge [could not] be related without relating details of the other charge.” Fitzgerald, 267 Or at 273.1 The court based its conclusion on its analysis of the legislature’s intent in passing ORS 132.560, the criminal joinder statute. The court determined that the legislature had intended to avoid prejudice to criminal defendants by limiting the circumstances under which offenses could be joined, rather than by allowing joinder and then severance when the defendant complained of prejudice. Id. at 271. It was with this theory in mind that the court in Fitzgerald approached the issue of what constituted a single criminal episode.
The court first concluded that “two charges may be joined if they are closely linked in time, place and circumstance” and went on to state that “[i]f the charges are joinable under that basic statutory test, no further inquiry need be made.” Id. at 272 (emphasis supplied). Only if there were some doubt as to the link between the acts would it be necessary to examine the evidence in order to determine whether evidence of one act could be related without reference to evidence of the others. Id. I conclude, therefore, that the court’s holding that separate offenses are part of the “same act or transaction” when “a complete account of one charge cannot be related without relating details of the other charge,” id. at 273, must be read to apply only to those cases where there is some doubt whether the offenses are closely *299linked in time, place, and circumstance.2 In the present case, defendant burglarized three rooms of the same motel in sequence, committing the same crimes in each room. I fail to see how there can be any doubt that those acts were closely linked in time, place and circumstance.
I find further support for my conclusion from the fact that the legislature has determined, for double jeopardy purposes, that a single criminal episode is “continuous and uninterrupted conduct that establishes at least one offense and is so joined in time, place and circumstances that such conduct is directed to the accomplishment of a single criminal objective.” ORS 131.505(4).3 Defendant has argued that his objective was to steal the televisions from each motel room. I am hard pressed to conclude that, had the state chosen to prosecute defendant for only one of the motel room burglaries, it would not have run afoul of the prohibition against double jeopardy in ORS 131.505 had it later attempted to charge defendant for the other two burglaries.
I therefore dissent from the majority’s conclusion that defendant’s three burglaries were not part of a single criminal episode and, hence, that they are not subject to OAR 253-12-020.
The court went on to determine that the defendant had not been prejudiced by the improper joinder, however, and affirmed the conviction on both counts.
That reading is in accord with this court’s decisions in subsequent cases, where we applied the evidentiary test to offenses that were so separated by time, distance or circumstances that there was some doubt as to whether the acts constituted a single criminal episode. See, e.g., State v. Spencer, 134 Or App 556, 895 P2d 792 (1995) (factoring and theft charges based on offenses committed using different credit cards at different times involving different merchants and different accomplices not part of same criminal episode); State v. Hathaway, 82 Or App 509, 728 P2d 908 (1986) (two charged incidents not contemporaneous; defendant’s acts not directed to accomplishment of single criminal objective); State v. Clifton, 64 Or App 550, 669 P2d 353 (1983) (applying “criminal objective” test); State v. Crumal, 62 Or App 156, 659 P2d 977 (1983) (burglary, assault and criminal mischief charges not same criminal episode as disorderly conduct that took place 45 minutes later; different times, places and victims involved).
In State v. Boyd, 271 Or 558, 533 P2d 795 (1975), the Supreme Court adopted the Fitzgerald test for issues arising under ORS 131.505(4).