¶1concurring and dissenting.
¶2Appellant was charged, convicted and sentenced for both felony murder and burglary. He was charged with killing the victim in the course of breaking and entering into her house with the intent to commit battery. The charge of burglary was based upon the same breaking and entering. It is apparent and fundamental error that sentence should not have been imposed upon both the burglary conviction and the felony murder conviction, as the burglary conviction arose from the same operative facts as the felony murder, and thus the burglary conviction merged with the felony murder conviction. Williams v. State (1978), 267 Ind. 700, 378 N.E.2d 142. Candler v. State (1977), 266 Ind. 440, 368 N.E.2d 1233. I would affirm, but remand with instructions to either simply vacate the sentence on the burglary conviction, or to hold a new sentencing hearing.
¶3DICKSON, J., concurs.