¶1concurring in part and dissenting in part:
¶2While I concur in the affirmance of appellant’s convictions for Robbery with a Firearm, Unauthorized Use of a Motor Vehicle, and Running a Road Block, I must disagree with the majority’s disposition of appellant’s last proposition regarding the violation of double jeopardy. Under the rule set down in Lawson v. State, 484 P.2d 900, 902 (Okla.Crim.App.1971) and its progeny, petitioner’s convictions for First Degree Burglary and Assault and Battery with a Dangerous Weapon should be reversed.
¶3*911Initially, I must note that while defense counsel for appellant did not specifically raise the issue of double jeopardy at the preliminary hearing, defense counsel did interpose a demurrer. Furthermore, defense counsel for appellant’s co-defendant made an objection based on double jeopardy, but was rejected by the magistrate. Regardless of the lack of objection, the majority fails to address the possibility of fundamental error. In Salyer v. State, 761 P.2d 890 (Okla.Crim.App.1988), this Court held that “a claim of double jeopardy is so fundamental that it can be raised by this Court on its own motion, even if it was not adequately preserved for appeal.” (Emphasis added) See also Hunnicutt v. State, 755 P.2d 105, 109 (Okla.Crim.App.1988); Gentry v. State, 562 P.2d 1170, 1175 (Okla.Crim.App.1977). Clearly, this violation of appellant’s constitutional right against being subjected to double jeopardy amounts to fundamental error and should be addressed by this Court. As stated in Ake v. Oklahoma, 470 U.S. 68, 74, 105 S.Ct. 1087, 1092, 84 L.Ed.2d 53 (1985), the waiver rule does not apply to fundamental error, and “[ujnder Oklahoma law ... federal constitutional errors are ‘fundamental.’ ”
¶4In the instant case, appellant urges that the burglary and robbery were part of the same transaction. He also asserts that the assault and battery with a dangerous weapon was an essential element of the robbery charge. I must agree. In Lawson v. State, 484 P.2d at 901, this Court held specifically that:
In the instant case, defendant’s First Degree Burglary and Robbery with Firearms were one single transaction. He entered the Hill home to commit the crime of Burglary; but in so doing he also committed — during the burglary transaction — the crime of Robbery with Firearms. For that latter crime defendant has already been convicted, and is undergoing punishment.
¶5The case at bar presents exactly the same situation. Petitioner entered the home to commit the burglary and in so doing, he also committed the crime of Robbery with Firearms. Furthermore, the crime of Assault with a Dangerous Weapon was committed during the course of the robbery, and therefore petitioner cannot be convicted of both. Richmond v. State, 492 P.2d 349, 351 (Okla.Crim.App.1971).
¶6Accordingly, the convictions for First Degree Burglary and Assault with a Dangerous Weapon should be reversed and remanded to the trial court with instructions to dismiss.