State v. Gardner

I concede that under Missouri v. Hunter, 459 U.S. 359, 74 L.Ed. 2d 535 (1983), the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution does not preclude punishing this defendant for both felonious breaking or entering and felonious larceny, of which, we must assume, the breaking or entering is an essential element, so long as our legislature so intended.

I think Hunter was incorrectly decided. It is based, in my view, on a misapplication of principles formulated by the United *464States Supreme Court in earlier cases and designed to resolve double jeopardy questions…