dissenting.
I respectfully dissent from that part of the majority opinion which reverses the conviction for receiving stolen property. I believe the conviction for both robbery and possession of the property did not violate double jeopardy prohibitions.
KRS 505.020 properly prohibits multiple punishments for a continuing course of criminal conduct which is a single event. That is not the case in this situation. To argue that it is, denies the criminal the opportunity to ever repent and restore the product of his crime. There is no incentive to return the loot. Cf my dissent in Jackson v. Commonwealth, Ky., 670 S.W.2d 828 (1984).
The constitutional protection against double jeopardy involves a test which determines whether one offense is included in the other if each offense requires proof of an element which the other does not. Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932); KRS 505.020; Polk v. Commonwealth, Ky., 679 S.W.2d 231 (1984). In order to convict Jones of the felony of receiving stolen property, the jury had to find the stolen television was worth more than $100. In order to convict him of robbery in the second degree, the jury did not have to make any finding as to the value of the property taken because KRS 515.030 requires the use or threat, of immediate use of force on another person in the course of committing a theft with the intent to accomplish the theft. Blockburger, supra, clearly contemplates that a continuing course of criminal conduct may constitute separate statutory offenses and does not restrict the legislature from authorizing cumulative punishment for such offenses. Jordan v. Commonwealth, Ky., 703 S.W.2d 870 (1985).
The majority misinterprets Blockburger when it uses the Wharton quotation relating to the single criminal impulse. In my view, there are separate successive criminal impulses which, even though they unite in a single event, can still be separately prosecuted and punished.
There are clearly distinct elements involving a conviction for robbery and theft and a conviction of robbery and receiving stolen property. The majority merges these concepts in a brief paragraph. I believe the majority opinion marks a clear change in the application of existing Kentucky law and should be announced as such. Therefore, if it is to be the law of Kentucky then it should be prospectively and not retroactively applied. Cf. my dissent in Hon v. Commonwealth, Ky., 670 S.W.2d 851, 853 (1984).
I would affirm the conviction in all respects.