People v. Palen

Defendants was charged with attempt (residential burglary) and possession of burglary tools. Prior to trial's evening recess on first day, court swore 8 jurors. Prior to trial resuming the next day, father of ASA died. That day, court sua sponte declared a mistrial. Court began jury selection for Defendant's second trial 13 months later. Defendant never filed motion to dismiss based on double jeopardy. Second jury convicted Defendant of both offenses. Jeopardy had not attached, as entire jury was not sworn. Jury was entitled to infer Defendant's intent to commit residential burglary from his conduct, and court did not err in allowing State to present single prior residential burglary conviction for limited purpose of showing knowledge and intent. Court did not abuse its discretion in sentencing Defendant to extended term of 10 years for attempt (residential burglary) conviction. As both charges originated from a single course of conduct, court should not have sentenced Defendant to extended, 6-year term for offense of possession of burglary tools, because that offense was not the most serious conviction. Court was statutorily authorized to impose extended term only on conviction with most serious class. (HOLDER WHITE, concurring; STEIGMANN, dissenting.)