dissenting.
With all due respect to the majority, its decision in this case and in State v. Woolard, 259 Or 232, 484 P2d 314, 485 P2d 1194 (1971) are prime examples of how the courts in recent years, in their "q[uest for perfect criminal justice,” have on some occasions not only usurped the powers of the legislature, but in doing so have "enacted” new "rules” of criminal procedure fraught with potential complications. See Fleming, The Price of Perfect Justice (1974).1
*6051. The law prior to Woolard was straightforward and clear.
Prior to the decision by the majority of this court in Woolard it appears to have been clear that because there were two separate statutes defining the crimes of burglary and larceny, each with a separate penalty provision,2 and because the two crimes involved some different "ingredients” or "elements,” so as to require evidence or proof of some different facts, a defendant who committed burglary and also committed larceny or attempted larceny after breaking into a building could properly be convicted and sentenced for both crimes. State v. Kennedy, 250 Or 422, 443 P2d 226 (1968). As held in State v. Stewart, 11 Or 52, 53, 4 P 128 (1883):
"'A single act may be an offense against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal, or conviction, under either statute, does not exempt the defendant from prosecution and punishment under the other.’ (Gray, J., in Morey v. Commonwealth, 108 Mass 434)”
See also State v. Weitzel, 157 Or 334, 340, 69 P2d 958 (1937), State v. McDonald, 231 Or 48, 52-53, 365 P2d 494 (1962), and Gore v. United States, 357 US 386 (1958).
This was a clear and workable rule and one which was based upon the assumption that it was the prerogative of the legislature to define crimes and to provide for punishment for each of such crimes. As we noted in State v. McDonald, supra, 231 Or at 52-53, it was also apparently in accord with the rule as adopted *606by most jurisdictions which had considered this question.3 That rule was criticized by the American Law Institute, but its proposed solution to the problem was the adoption of a statute (Model Penal Code § 221.1) which would prohibit only the imposition of sentences for both offenses in some, but not all cases,4 rather than the change of that rule by judicial decision to prohibit not only sentences, but convictions, for both offenses.
Consistent with that rule, this court has held that whether a defendant may in fact be convicted and sentenced for two offenses arising out of the same course of conduct depends upon the intent of the *607legislature in enacting the statutes creating the offenses. State v. Howe, 27 Or 138, 44 P 672 (1895); State v. Nodine, 121 Or 567, 256 P 387 (1927); State v. Gerritson, 124 Or 525, 265 P 422 (1928). See also State v. Woolard, supra, and Gore v. United States, supra.
It follows, in my opinion, that when, as in this case, the legislature has defined two separate crimes— burglary and larceny (or attempted larceny)—which have separate and distinct elements requiring different proof, and for which specific punishments have been provided, there is at least a "presumption” that the legislature intended that a defendant may be separately convicted and sentenced for both of these crimes. Such a "presumption” should only be overcome upon a showing that:
(1) There is an express legislative directive (in the form of a statute) that a conviction or sentence may be imposed for one offense only; or
(2) Such an intent clearly appears from the legislative history of the statutes in question, or
(3) Constitutional requirements such as the prohibition of double jeopardy make separate convictions or sentences improper.
2. The holding in Woolard.
In State v. Woolard, supra, the court recognized (at 235) that whether a defendant can be convicted and sentenced for two offenses arising out of the same course of conduct "depends upon the intent of the legislature in enacting the statutes creating the offenses.” The court also recognized (at 236) that "[t]he Oregon statutes * * * do not expressly indicate any legislative intent.”
But instead of holding that, in the admitted absence of such an "indication” of legislative intent to prohibit the conviction and sentencing of a defendant guilty of both burglary and larceny for both offenses, a defendant can be convicted and sentenced for both crimes (in accordance with the provisions of ORS 164.230 and *608164.320), the majority in Woolard reasoned as follows (at 237-38):
'The most significant feature of the two statutes is that the mere preliminary act of breaking and entering a dwelling with intent is regarded by the legislature as being much more anti-social than larceny from a dwelling. This is exhibited by the maximum penalty for burglary being fixed at 15 years, whereas the maximum for larceny from a dwelling is seven years. The heinous nature with which the legislature regarded the preliminary act of breaking and entering a dwelling is further accented by the fact that an intent to commit a serious crime like larceny or any other felony is unnecessary. The requisite intent for burglary exists if there is an intent to commit any crime, no matter how trivial. State v. Huntley, 25 Or 349, 35 P 1065 (1894) (intent to commit a misdemeanor).
"Under these circumstances, in the absence of some indication that the legislature had a contrary intent, we interpret our statutes to provide that one breaking and entering with the intent to commit larceny can only be convicted and sentenced for either burglary or larceny, but not for both.” (Emphasis added)5
3. The majority opinion in this case.
The majority opinion in this case recognizes (at 587) that "the attribution of the Woolardholdixig to legislative intention” was "speculative.” Because, however, the validity of the Woolard holding (that a person charged with both burglary under ORS 164.230 and larceny under ORS 164.320 cannot be convicted and sentenced for both statutory offenses) must necessarily rest upon a finding that the legislature intended to prohibit conviction and sentencing for both statutory offenses, the majority necessarily seeks to discover some basis beyond "speculation” to support a finding of such a legislative intent.
*609Being unable to find either any statutes or legislative history directly in point, the majority (at 591) embarks upon a "search for a rational policy”toward conviction and sentencing. In the course of that "search” the majority discusses at length the statutes of other states, what other courts have held and what legal scholars have said. Because, however, the holding in Woolard must rest upon a finding of the intention of the Oregon legislature, that discussion by the majority is of little, if any, relevance other than as a matter of academic interest.
The majority then (at 591-596) discusses various Oregon statutes, none of which is directly in point, and purports to discover from them a "penal policy” that "attach(es) importance to the 'singleness’ of a defendant’s criminal objective rather than only to the 'singleness’ of his acts” (a theory not advocated by either party in this case). In the course of that discussion the majority considers the 1971 and 1973 revisions of the criminal code and criminal procedure code and notes (at 591) that these statutes (enacted since Woolard) "do not contain a specific provision governing conviction and sentence on multiple charges” in cases such as this one. The majority then places great emphasis upon the enactment in 1977 of an act relating to prison sentences and parole. Oregon Laws 1977, Chapter 372. The majority (at 592) describes the provisions of that act as designed "to compel principled analysis and to reduce disparity in the disposition of offenders at each stage of the process.” The majority observes (at 19):
"* * * Taken together, the legislature’s recent enactments reflect a continuing policy to bring rationality and proportionality to the penal dimension of criminal law * * (Emphasis added)
The majority also relies upon ORS 131.505(4), which defines "criminal episode” as:
«* * * continuous and uninterrupted conduct that establishes at least one offense and is so joined in time, place and circumstances that such conduct is *610directed to the accomplishment of a single criminal objective.”
and on 131.515(2), which requires the joinder for purposes of prosecution of "two or more offenses based on the same criminal episode.” The majority comments (at 595) that these statutory provisions reflect the view of the legislature that:
"* * * Multiple statutory violations are to be dealt with in one prosecution, not merely because they involve evidence common to the time, place and circumstances, but because the responsibility of the defendant for his conduct in pursuit of one 'criminal objective’ should be fully determined in one proceeding.”
From the foregoing analysis of the recent legislative enactments, the majority concludes (at 596):
"In the present case, as in State v. Woolard, supra, there is no dispute that the offenses of which defendant was convicted arose in a criminal episode marked by a single objective—theft—as well as by continuity of time and place. Accordingly, nothing in the statutory policies enacted since Woolard appears to contradict the court’s conclusion in that case that when a breaking and entering with intent to commit a crime is followed by the commission of the intended crime, the penalty is to be limited to that prescribed for the offense carrying the greater potential sentence. We reaffirm that conclusion. That is the specific issue, and it is all we decide in this case. * * *” (Emphasis added)
Applying the rule ofWoolard,as supported by these "statutory policies,” to the facts of this case, the majority then concludes that because Woolard bars both multiple sentences and the entry of multiple convictions, and because the order in this case imposes a four-year sentence after reciting that defendant had "heretofore been duly convicted” of both burglary and attempted theft, this case must be remanded both for resentencing and for entry of a judgment of conviction on the burglary count only.
*611 4. The fallacy of the majority’s analysis of Oregon statutes.
(a) The "policy” argument.
The analysis by the majority of the "policy” of recent legislative enactments provides no support for the proposition that the legislature intended that a defendant could not be convicted and sentenced for both burglary and larceny (or attempted larceny) arising out of the same "criminal episode.” The "policy” underlying the 1977 statute relating to prison sentences and parole (Or L 1977, ch 372), although "designed to compel principled analysis and to reduce disparity” and "to bring rationality and proportionality to the penal provisions of criminal law” (as stated by the majority), is fully as consistent with the concept of separate sentences for separate crimes of burglary and larceny (or attempted larceny) as with the majority concept of a single sentence for burglary only. Under that penal plan, trial courts are provided with presen-tence reports and must state on the record the reasons for the sentences imposed (ORS 144.790(1) and 137.120(2)). The sentences are for an indeterminate period of time, with the trial court stating only the maximum term for the crime (ORS 137.120(2)). Sentences which are excessive, unusual or cruel may be reviewed by the Court of Appeals (ORS 138.040 and 138.050). Moreover, apart from the sentencing court’s statement in its sentence of the maximum term for the crime, it is the Board of Parole that determines the actual duration of imprisonment and in doing so seeks to achieve "[p]unishment which is commensurate with the seriousness of the prisoner’s conduct,” after considering "aggravating or mitigating circumstances.” (ORS 144.780(2)(a) and ORS 144.785(1)). Thus, regardless of whether a. defendant in a burglary-larceny case may be "convicted and sentenced” for both offenses, or only for burglary, the overall "seriousness” of defendant’s conduct, including all "aggravating” circumstances, is to be considered in determining the duration of imprisonment.
*612To take two examples, defendant A, who breaks into the house of an aged and blind woman with intent to commit larceny, but takes nothing and leaves upon seeing her condition, would receive a lighter sentence than defendant B, who breaks into the same house the following night and steals all of the cash in her purse, her cane and her seeing-eye dog. In the latter case a proper sentence, and the "duration of imprisonment,” would be the same if imposed only for burglary, but considering the overall "seriousness” of the offense and the "aggravating circumstances,” as if imposed technically for both burglary and larceny, but considering the same factors. Surely the majority cannot mean to say that the sentence of defendant B must be the same as defendant A because the sentence can only be imposed for the crime of burglary.
Similarly, the "policy” underlying ORS 131.505(4) and 131.515(2) to provide that offenses "based upon the same criminal episode” (that is, "directed to the accomplishment of a single criminal objective”) shall be prosecuted together has little, if any, relevance to the question whether separate sentences may be imposed for those offenses. Again, it is just as consistent with these provisions (and perhaps more so) to impose separate sentences for each offense for which the defendant is found guilty in such a consolidated trial as it is to provide that a sentence may be imposed for one offense only.
Perhaps this is the reason why the majority could go no further than to state (at 596) that "nothing in the statutory policies enacted since Woolard appears to contradict the court’s conclusion in that case.” (Emphasis added) For the majority to then and on that basis, however, reaffirm the rule in Woolard that when burglary is followed by the commission of larceny in the same criminal episode the defendant may only be convicted and sentenced for the burglary, is for it to make the same mistake as made by the majority in Woolard. As previously noted, the court in Woolard reached its conclusion of a conviction and *613sentence for the burglary only based on "speculation” as to what the legislature intended and on "the absence of some indication that the legislature had a contrary intent.” (259 Or at 238)
In my view, such a holding gives insufficient weight to the "presumption” that should exist that, when the legislature defines and sets penalties for separate crimes such as burglary and larceny which require different proof of their differing elements, the legislature intended such crimes to carry separate sentences, even when the crimes arose out of the same criminal episode. The burden should be on the defendant to show either by express statutory provision, by clear indications of legislative intent, or by constitutional limitations, that such apparent intention cannot prevail. Both the majority in this case and in Woolard, however, would in effect establish a contrary "presumption” by the holding that a defendant found guilty by a jury of both burglary and larceny can be convicted and sentenced for only one crime in the absence of "legislative indications to the contrary.”
Even if there were no "presumption” established one way or the other, however, it is my opinion that the result of the majority’s purporting to find an "indication” of legislative intent based solely upon a finding of legislative "policy” is either to adopt a new and novel "rule” of statutory construction for which the majority has cited no authority, or is an attempt to embark upon a course of judicial "rule making” in criminal procedure, contrary to the provisions of ORS 1.002(1):
"* * * The Supreme Court may make rules and orders necessary or appropriate to the exercise of its administrative authority and supervision, but this section does not authorize the Supreme Court to make rules of civil or criminal procedure. * * *”
(b) Other statutes enacted since Woolard.
In 1971 the legislature enacted ORS 161.505, which states:
*614"An offense is conduct for which a sentence to a term of imprisonment or to a fine is provided by any law of this state * *
Prior to the enactment of that statute and prior to Woolard, the legislature, by ORS 164.230, had defined the offense of burglary and had provided for a sentence of imprisonment for that offense, and by ORS 164.320 had also defined the offense of larceny and had provided for a sentence of imprisonment for that offense.
At the time of the enactment of ORS 161.505 it had been held in Woolard, based upon "speculation” as to legislative intent as of that date, that there could be no sentence to a term of imprisonment of the defendant in that case for the offense of larceny even though he had been found guilty of that offense by a jury. In my opinion, however, by the enactment in 1971 of ORS 161.505 the legislature made it clear that a sentence in a case such as this one is proper for any conduct, including larceny, for which a term of imprisonment is provided by law, upon conviction by a jury of such an offense. Under the holding by the majority, however, one who is convicted of burglary by the entry of a building could not also be convicted of larceny and no sentence could be imposed for that offense, even though ORS 164.320 specifically provides for a penalty for that offense. In my opinion, and with all due respect to the majority, such a result is at least contrary to the "policy,” if not the direct intent of the legislature as expressed by the enactment in 1971 of ORS 161.505.
In addition, ORS 131.505(2), enacted in 1973, provides that:
"When the same conduct or criminal episode violates two or more statutory provisions, each such violation constitutes a separate and distinct offense. ” (Emphasis added)
Although that provision is a part of a statute relating to double jeopardy, as pointed out by the majority, it *615nevertheless is an expression of a legislative policy which is far more consistent with the view that there may be separate convictions and sentences for each offense arising from the same "criminal episode” (such as burglary and larceny, as in this case) than it is with a legislative policy that would forbid the conviction and sentencing for both of such offenses, as held by the majority.
In short, the enactment since Woolard of ORS 161.505 and 131.505(2) and the total absence of direct legislative support for the majority’s conclusion, when combined with the existence of a "presumption” that when the legislature defines separate crimes with separate elements and penalties, convictions and sentences may be imposed for both crimes, compels me to the conclusion that the proper result in this case would be to hold that a defendant may be convicted and sentenced for both burglary and larceny arising out of the same criminal episode. Such a holding would also avoid the complications inherent in the result reached by the majority, as next discussed.
At the very least, and even if one were to accept the proposition that multiple sentences may not be entered, it is my opinion that both the majority in this case and in Woolard are wrong in holding that multiple convictions may not be entered. This holding does not follow from the asserted rationale in Woolard (stated above) that the disparity in the sentences for burglary and larceny indicates a legislative intent to include the punishment for larceny within the punishment for burglary. Indeed, the Model Penal Code section cited in Woolard (259 Or at 238) and quoted above (n. 4) prohibits only multiple sentences for burglary and larceny, not multiple convictions.
5. Complications arising from the majority opinion.
Wholly aside from problems of vagueness and ambiguity arising from the manner in which the majority opinion is written, the majority recognizes that complications will arise from its conclusion that a *616conviction and sentence can be entered only on the charge of burglary because of the questions that then arise relating to what may happen in the event of reversal on appeal of the burglary charge to the guilty verdicts returned by the jury on the charge of larceny. To solve this problem the majority proposes an elaborate plan involving the pronouncement and suspension of judgment and sentence on the larceny charge, with an order that such judgment and sentence are vacated when the time for appeal from the burglary judgment has elapsed or the burglary judgment has been affirmed. This complex procedure stands in sharp contrast to the simplicity of entering a conviction and sentence for each offense, a procedure which trial and appellate courts can handle without difficulty. Moreover, as previously mentioned and as a practical matter, due to Oregon’s new sentencing and parole statute, the same result is likely to follow in terms of the duration of imprisonment of the defendant from both the complicated proposal by the majority and the simple system in effect prior to Woolard.
In addition, the reasoning by the majority that the trial court can neither convict nor sentence for the lesser crime, when taken to its logical conclusion, leads to the proposition that the trial court in sentencing for burglary cannot even consider tine crime committed within the building, or even whether a crime was committed within the building. Thus, to use the same example previously suggested, the majority approach would logically require the same sentence for burglary for a defendant who broke into the house of an aged and blind woman intending to steal something within, but who then changed his mind and left without taking anything, as for a defendant who broke into the same house and stole all of her money, her cane and her guide dog.
Two other problems noted by the court in Woolard are also perpetuated by the majority opinion here. The first problem follows from the reasoning that the *617heavy penalty for the crime of burglary—which includes the intent to commit a crime inside—was meant to also embrace the penalty for the crime which followed. What happens when the burglar intending one crime commits a different crime after entry? The second question is what happens when the crime committed inside carries a greater penalty than that for burglary? In Woolard, the court held that such a defendant should be sentenced and convicted for the more serious crime only. Once again, however, would the trial judge be prohibited from considering in the determination of an appropriate sentence that such crime (i.e., rape) was committed after the defendant broke into a house, as opposed to the commission of the same crime under different circumstances?
As a final problem, we note that the majority would "leave it to the Court of Appeals in the first instance to develop criteria for multiple convictions and sentencing” in a number of kinds of cases described by the majority (at 598-599). In short, the courts of this state can look forward to a continuing wrestling match with the question of multiple sentencing under the approach taken by the court in Woolard and by the court today.
None of these problems would arise if this court had not, by judicial legislation or "rule making,” replaced a straightforward rule of separate convictions and sentences for burglary and larceny with a holding— unsupported by any legislative directive—that such multiple sentences and convictions were not intended by the legislature.
6. The order in this case.
As noted by the majority, the order entered by the trial court in this case reads as follows:
"The defendant, GASTON CLOUTIER, having heretofore been duly convicted of the crime of 'COUNT I: BURGLARY IN THE FIRST DEGREE and COUNT II: ATTEMPTED THEFT IN THE SECOND DEGREE,’ upon the verdict of a jury on August *61818, 1977, and this being the time set for the imposition of sentence; * * *
"It is hereby CONSIDERED, ORDERED and ADJUDGED that GASTON CLOUTIER is GUILTY of the crime of 'COUNT I: BURGLARY IN THE FIRST DEGREE and COUNT II: ATTEMPTED THEFT IN THE SECOND DEGREE,’ and it is the judgment of the Court that he be sentenced to the OREGON STATE CORRECTIONS DIVISION for a period of FOUR (4) YEARS * * * ”
This order shows on its face the entry of convictions for both burglary and attempted theft in the second degree. The order does not, however, say that a sentence was imposed not only for burglary, but that a sentence was also imposed for attempted theft. In other words, this is not a case such as Woolard, in which it clearly appeared from the record that the defendant was separately sentenced on the burglary and the larceny, with the two sentences to run concurrently.
In addition to the fact that this order does not show that separate sentences were imposed, the defendant raised no objection in the trial court to the form of the order. It follows, in my opinion, that even if the majority in this case and in Woolard was correct in holding that the defendant in such a case cannot properly be given a sentence based upon his conviction by a jury for both burglary and attempted larceny (a holding with which I strongly disagree), this court should nevertheless affirm the order of the trial court in this case.6
In Ms book The Price of Perfect Justice (1974), Macklin Fleming makes the following observations wMch have relevance to the problem presented in this case and the solution to that problem as adopted by the majority.
"* * * [Tjoday’s dominant legal theorists, impatient with selective goals, with limited objectives, and with human fallibility, have embarked on a quest for perfection in all aspects of the social order, and in particular, perfection in legal procedure.” (p. 4)
«* * * *
"* * * [Wjhen we aim at perfect procedure, we impair the capacity of the legal order to acMeve the basic values for wMch it was created, that is, to settle disputes promptly and peaceably, to restrain the strong, to protect the weak, and to conform the conduct of all to settled rules of law.” (p. 6)
«* ;{: * *
"During the past decade the supremacy of written, recorded law has been sharply challenged by the growth in popularity of * * * legal theories * * *. Written law is now routinely qualified, rewritten, or repealed by the courts acting under the authority of natural law, fundamental law, or divine revelation.” (p. 114)
«ífc
"* * * [Tjhe habit has grown apace of replacing legislative acts of a popular assembly with decrees of a privy council, more specifically decrees of the courts. In tMs devaluation of written law and of legislative authority of popular assemblies, courts have boldly undertaken to rewrite laws of every description, from criminal procedure, to rights of inheritance, to regulation of personal conduct, to state and federal election laws, to parole revocation, to abortion. In entering upon such legislative tasks the courts find themselves creating, determining, selecting, and applying policy * * (Emphasis added) (p. 116)
Ofi
"Frequently, a court is shown a tiny segment of a general problem and solemnly assured by the partisans before it that the tiny segment comprises the entire problem.” (p. 120)
*605"This narrow, limited presentation normally focuses the decision of a court on a single aspect of a general problem. But the problem itself remains, and as with the hydra, as soon as one head is cut off, nine others appear. The court is then forced to attack the nine other heads, and in so doing it tends to pile complication on complication until what should be simple, clear and direct becomes complicated, obscure, and tortuous.” (p. 120)
ORS 164.230 and ORS 164.320.
See, e.g., Morgan v. Devine, 237 US 632 (1915), State v. McAfee, 78 NM 108, 428 P2d 647 (1967); Matey v. Sacks, 284 F2d 335, 337 (6th Cir 1960)(construing Ohio law); State v. Byra, 128 NJL 429, 26 A2d 702 (1942), aff’d 129 NJL 384, 30 A2d 49 (1943), cert den 324 US 884 (1945). Contra, People v. McFarland, 58 Cal 2d 748, 26 Cal Rptr 473, 376 P2d 449, 455-57 (1962).
Model Penal Code § 221.1 (American Law Institute Tentative Draft No. 11, 1960) would provide as follows:
"(3) Duplicate Penalties. A person may not be sentenced on the basis of the same conduct both for burglary and for the offense which it was his purpose to commit after the burglarious entry or for an attempt to commit that offense, unless the additional offense constituted a felony of the first or second degree.”
The "comment” on that proposed statute is as follows:
"Duplicate Penalties. The provision in subsection (3), restricting duplicate penalties for burglary and for the offense which the burglar intended to carry out is designed to prevent the abusive practice, referred to in Comment 1, of imposing consecutive sentences for burglary with intent to steal and for the actual theft. Since the severe penalties for burglary are devised largely to provide aggravated penalties for theft committed by lawless intrusion, it is irrational to cumu-late theft and burglary penalties. The same reasoning holds for burglary to commit any other minor crime. However, where the ultimate offense contemplated by the burglar is a felony of the second degree, there is no injustice in allowing the judge to consider whether the serious offense was not specially aggravated by the circumstances of intrusion. This could be done, under Sections 6.07 and 7.03 of this Code, by finding the culprit guilty as a 'multiple offender,’ making him subject to an 'extended sentence’ with a maximum of 15 years where both offenses are felonies of the second degree.”
It should be noted that the Oregon Legislature, in drafting and adopting the new burglary statutes (ORS 164.205 et seq.) in 1971 had Model Penal Code § 221.1 before it and did not adopt a section comparable to § 221.1(3), quoted above. Oregon Criminal Code of 1971, p. 180 (1975).
At that time I joined the majority in Woolard. Since then, and for reasons which appear in this dissent, I have concluded that Woolard was wrongly decided.
As in State v. Classen, 285 Or 221, 590 P2d 1198 (decided February 13,1979), it should be noted that this is also a criminal case which was not decided within the 90 day period adopted by the American Bar Association as a "standard” for appellate courts in all but cases of "extraordinary complexity.” Indeed, this case was not decided until nearly eleven months after oral argument.
The concurring opinion in Classen set forth comparative statistics for the years 1976,1977 and 1978 relating to the general problem of delays on appeals to this court during 1977 and 1978. (285 Or at 241) Since December 31, 1978, the court, although making some progress in its disposition of *619petitions for review, has made little or no progress in its disposition of cases after oral argument on the merits despite a much lighter case load, as demonstrated by the following comparative statistics (the latest available):
Four Mo. Ending 4/30 Percentage Increase Or Decrease
1978 1979
Number of cases heard on oral argument 92 64 -30%
Elapsed days from date case "at issue” to date of decision 133 198 + 49%
During May and June a total of only 14 cases were to be heard on oral argument. As of this date, however, 24 cases that had been heard on oral argument and had been "assigned” to members of the court were still "unwritten” by the preparation of proposed opinions after a period of 90 days, as compared with 23 "assigned but unwritten” cases over 90 days old as of December 31, 1978.