Sours v. State

knowing defendant without what the facts If the on critical is at point evidence unclear, best then we should not decide the are.

point way until the record is clear one Passing points on under an ad other.

mittedly unclear record is a denial of funda puts court process

mental due willingness to make a deci position If the inadequate

sion on an record. cause

is not for a new reversed and remanded trial, urge then I would that we remand the SOURS, Appellant, William Scott hearing, cause to the trial court for a after v. parties opportu due notice to the and with Missouri, evidence, Respondent. nity present with the burden of STATE compliance proof being on state show No. 61458. statute, with the with instructions to the Missouri, as to specific findings trial court to make En Banc. given whether or not to Rone’s notice was parents custody, their son and if Aug. so, then certi when. The trial court should hearing to fy transcript to us the findings and conclusions. If

gether with its violated, to have been

the statute is found accordingly.

then we can consider the case violated, drops

If not then the matter out of this sort is one we procedure

the case. A

have used on numerous occasions. See (Mo.1973); Bridges,

State v. S.W.2d (Mo.1970); Ussery, v. 452 S.W.2d

State (Mo.1969); Taggert, v.

State S.W.2d Edwards, (Mo.1968); 435 S.W.2d

State (Mo.1968); Auger,

State Devoe, (Mo.1968); 430 S.W.2d 164

State Glenn,

State S.W.2d Sales,

1968); see also S.W.2d

302 (Mo.App.1977). to decide

Another alternative would be us—the claim

only the first before relin- juvenile improperly court dismiss

quished jurisdiction —and the confession claim that

second claim —the having been parents without his

was taken he was in possible that

notified as soon as right to the

custody prejudice —without proceeding a Rule 27.26 defendant to file a factual permit That would issue. were noti-

hearing parents on whether the and if not whether possible

fied as soon as and, so, thereby if prejudiced

Rone was to raise lawyer

whether the failure of his assistance point constituted ineffective not be By doing this we would counsel. deciding the case position action, for armed

conviction criminal set aside that conviction vacated and appellant ground placed that the conviction We the same offense. jeopardy twice in it judgment insofar as denied affirmed the for rob- his conviction appellant relief from Su- bery degree. United States and re- preme vacated our decision Court manded the case for reconsideration light States, of Whalen v. United (1980). 100 S.Ct. 63 L.Ed.2d 715 Sours,-U.S.-, Missouri v. S.Ct. facts 64 L.Ed.2d. 820. The detailed history prior procedural of this case opinion, may be found this Court’s earlier at 210. S.W.2d Supreme Court has United States imposing separate never whether decided proceeding in a both for single committing felony by the offense of weapon deadly means felony vio- the commission of the the fed- jeopardy lates clause of the double expressly eral The Court de- Constitution. Simpson issue clined to rule on this States, United 435 U.S. (1978). Whalen v. United

L.Ed.2d 70 Cf. States, (1980). Each time similar jeopardy has been before question Robards, Defender, Joplin, David Public Court, it Supreme has United States appellant. to address the consti- unnecessary, found it because has been able question, tutional Ashcroft, Gen., John Atty. W. Steven did not intend to to find that the

Garrett, Gen., City, Jefferson Atty. Asst. two in- punish the offenses separately respondent. States, volved. Whalen v. United (1980); Simpson WELLIVER, Judge. States, 6, 11, 98 United Sours, Appellant, pleaded William Scott 55 L.Ed.2d 70 Iannelli guilty to two counts of an information filed 770, 785-86 nn. appellant June I charged Count 17-18, 560.120, degree robbery, with first RSMo § See Jeffers v. United 560.135, Supp.1975; RSMo § action, charged Count II armed criminal opinion Supreme No United Court States (now 571.015, Supp.1976 RSMo § § contained has statute that considered 1978). A separate identical to that found wording similar Appellant sought imposed for each count. armed criminal action statute. Missouri’s relief his in a convictions collateral 27.26. the defendant was convicted proceeding under Rule In Sours v. State, Mo., and of rape, we Ann. re- D.C.Code § e., rape i. of the felony-murder, killing court inso- judgment versed the trial rape, D.C.Code appellant far as it denied relief from his victim in the course violate the double clause. would to con- Ann. 22-2401. He was sentenced years of 20 imprisonment secutive terms holding that the would decide Before Court murder, and of 15 degree to life for first interpretation statutory rape. The District of Co- years to life for interpretation of deferring to the without affirmed, Appeals 379 A.2d lumbia Appeals, the District of Columbia Court 1152. The United States ques- carefully distinguished the Court reversed, Ann. holding that under D.C.Code from the statutory interpretation tion of 23-112,1 intend that Congress did not Court stated question. for two multiple punishments imposed defer it must that, the matter of whether if of the same criminal arising offenses out Ann. given construction D.C.Code to the requires unless each offense transaction the District of 22-2401 22-2801 and §§ does not. proof of a fact which the other absent, were Appeals Columbia Court The Court stated that course first decide a matter of “we would as not authorize consecutive Congress did and, claim, only if statutory petitioner’s killing com- rape and for sentences we reach rejected, would that claim were rape, of the since it mitted in the course Simpson v. the constitutional issue. See provi- that “each plainly is not the case 11-12, 6, proof States, sion of a fact which the requires S.Ct. United killing not.” A conviction other does 909, 912, 687, at 55 L.Ed.2d 70.” 445 U.S. cannot be had rape in the course of a Accordingly, since the at 1435. S.Ct. elements of the proving without all the statuto- reject petitioner’s Court did not v. rape. United States offense of See claim, the constitutional ry it did not reach Greene, U.S.App.D.C. 489 F.2d presented.2 issue Cf. Harris Oklaho- Blackmun, concurring in the Mr. Justice ma, 682, 682-683, 97 433 U.S. S.Ct. (Mr. Justice White judgment in Whalen [1977], concurring part and con- opinion filed an at 100 S.Ct. at 1439. The Mr. Justice curring judgment and expressly question reserved thé Court dissenting opinion in Rehnquist filed whether, intended to Congress clearly had Burger joined) stat- which Mr. Justice Chief punishments for the same impose multiple suggested: wrongly had offense, punishment prior that cases imposition of such ed liberty provides: deprived for crimi- 23-112 Ann. § D.C.Code only authorized nal conduct to the extent imposed person for convic- A sentence on a judgment shall, Congress, we reverse the the court tion of an offense unless Appeals. imposing expressly provides such sentence Court of otherwise, consecutively other run at 1437. 100 S.Ct. 445 U.S. at imposed for convic- Rehnquist, sentence on such Mr. Justice in his dissent Busic , offense, - - ,100 not the offense tion of an (1) whether or v. United States transaction, (2) out of another arises (1980), the decision considered transaction and re- arises out of the same quires proof very issue which in Whalen to have decided the other does of a fact which expressly “In Whalen He stated: it reserved. not. States, 684, 100 S.Ct. United that, phrasing although Court stated this six Members of Court felicitous,” it would this statute was “less than impose Congress’ cumula intent to held that multiple punish- to mean “that be construed single proceed punishments criminal at a tive imposed offenses aris- ments cannot be for two question ing completely of dou controlled ing out of the same criminal transaction unless jeopardy.” at -U.S. 100 S.Ct. ble ‘requires proof of a fact which the each offense that in Whalen in fact held 1759. The Court 691, other does not.’” 445 U.S. at congressional intent not to the case involved at 1438. single impose aat cumulative 2. The stated: Court proceeding. 445 U.S. at criminal the Dis- Because we have concluded that noteworthy Perhaps S.Ct. at 1439. Appeals was mis- trict of Court of Columbia join eight in Mr. did not members of the Court believing Congress authorized taken in reading holding Rehnquist’s Justice sentences the circumstances consecutive Whalen. case, that error denied of this and because right petitioner to be his constitutional in detail original opinion discussed Our the Double Clause recent United cumulative two States prevent imposition whether in which the cases in which punishments in situations subject defend- legislature intended intended Legislative clearly Branch crimi- single for a penalties multiple ant to single penalties be multiple carefully distinguished nal transaction Simpson v. criminal transaction. pun- cumulative question whether from the States, United constitu- two offenses are ishments for the (1978); Jeffers Simpson United tionally permissible. 137, 155, 97 States, 435 (1977) (plurali- L.Ed.2d v. United Jeffers L.Ed.2d ty I believe that opinion). presented by opportunity take the should Sours (1977) opinion). See (plurality square- dicta repudiate case those (Mo.1980). State, 214-16 ly, clearly question to hold that the of and constitutionally are punishments what of United States Su The decision the is from the permissible not different original judg to vacate the preme Court question punishments Legis- of what the to remand this case of and ment this Court I imposed. Branch intended lative light in of Whal “for consideration further seeming- the that must concede that dicta States, 445 100 v. United en contrary have caused ly support view (1980),” mandates L.Ed.2d 715 have among confusion state courts that intent of the Gener we the reexamine decipher pronounce- attempted our 559.225, RSMo enacting Assembly § al concerning ments the Double Whalen, deter the Court In Supp.1976. multiple pun- Clause’s role in the area of pun Congress did not intend mined that ishments. committing rape petitioner the both for ish committing killing at in the course for S.Ct. at 1441. Clear- and conclusion, reaching justices joined opin- rape. the who In ly, five of the Ann. 23- (Justices applied § ion of the Court in the Court D.C.Code Whalen Stew- art, Stevens, Brennan, Blockburger v. United Powell, Mar- and doctrine States, shall) 52 S.Ct. L.Ed. declined Justice Blackmun’s invita- 284 U.S. (1932) statutory construc question pun- of what “a rule of tion to hold at at 1438. constitutionally permissible ishments are tion.” the Court held question Bioekburger, can to the of what “[t]he be reduced same act is where the intended to be rule legislature applicable of two a violation questions remain dis- constitutes imposed. The two or transaction the test to be statutory provisions, opinion tinct.3 The Whalen distinct there are two its whether Simpson approval separa- applied cited with for to determine one, provi whether each only is statutory tion of the claim from consti- offenses which the other requires proof of a fact tutional issue for its avoidance of the sion and 304, 52 at 182. leg- not.” U.S. at by finding that the does constitutional issue has been cited multiple punish- Bioekburger rule often islature did not intend present At times it has been at 1435. Court. ments. 445 U.S. 100 S.Ct. at particles, collapse into its constitutional transaction into protons subatomic 3. Our refusal to electrons, parti- question into and neutrons and into intent weights charges assumption, criti- and does not commit us to the cles different electrical that, Rehnquist, any par- spins. only defini- cized Mr. Justice “that hold once the We up configuration made of a ticular criminal transaction is as a may tion crime fixed elements, not, consistently number of atoms determinable such state legislature process that the cannot further subdivide double clause and the due clause, impose separate jeopardy separate punishments into offenses.” (Mr. at 1443 Justice Rehn- of which for neutron and for the atom both contrary, recog- quist, dissenting). we part. On is a nize divide the criminal that the construction, for statutory ed as a tion “same offense” rule of but States, Whalen United been as the purposes.4 more often it has used defini (1932) proceed (single In numerous decisions of the United States 76 L.Ed. ing; punishments from 1902 to the same for sale of convictions uniformly morphine stamped test was as the defi original evidence treated in or from the not jeopar nition of package pursuant sameness offense for double and for sale not to a written dy purposes. affirmed; The same test was used requisite Treasury evidence order on the form frequently single prosecution more in the multi under offenses held distinct same evidence ple punishment States, context than it was the mul test); King v. United tiple prosecution context. Harris United (1929) (per curiam) (two 74 L.Ed. 590 S.Ct. proceedings; plea States, 19, 23-24, jeopardy rejected of former (1959) (single proceeding; L.Ed.2d 597 convic selling morphine in or where not sentence punishments purchasing tions and from an heroin stamped package original was im from the unstamped package, violation of 26 posed proceeding before one executed 4704(a), receiving U.S.C. and for and conceal § charging shipment second indictment interstate ing knowing it to been unlawful same have drugs registered who not has imported, ly § a violation of 21 U.S.C. brought; paid special required tax affirmed; same ev offenses held distinct under test; evidence offenses held distinct under same test); idence Gore (9th 1929)); affirming Cir. Albrecht 31 F.2d 1, 11-12, 47 S.Ct. v. United (1958) (single proceeding; convic -254, (1927) (single pro 253 71 L.Ed. 505 punishments tions and and distribution sale ceeding; four convictions and original of heroin and cocaine possession liquor illegal four counts of stamped package, a violation of U.S.C. illegal liquor sale of in violation counts 4704(a), drugs pursuant for sale of the Act and count of National Prohibition maintaining one requisite Treasury an order written on the affirmed; sale a common nuisance form, 4705(a), a 26 and violation of U.S.C. for § possession evi held distinct under same and facilitating drugs, concealment and sale of the 632, test); Devine, Morgan v. U.S. dence 237 affirmed; 174, a 21 violation of U.S.C. of § 39, 712, 713-14, 641, 59 L.Ed. 35 S.Ct. 638 test); under fenses held distinct same evidence (1915) (single proceeding; convictions 1153 1, 12, States, 9, 11- Pereira v. United 347 U.S. guilty pleas charges of and sentences on to 358, 363, (1954) (single 74 proceeding; 98 435 S.Ct. L.Ed. breaking post a office unlawful forcible building into punishments convictions and for larceny, with to commit a viola intent 1341, mail a of U.S.C. § fraud violation 18 for Code, stealing 192 and of § tion of of the Penal transporting merce, property in interstate com stolen postage stamps belonging and funds to 2314, of 18 and a violation U.S.C. for § States, the Penal § United a violation of 190 of offenses, conspiracy both a violation to commit Code, affirmed; under distinct offenses held affirmed; 18 held of U.S.C. 371 offenses dis § test; using evidence the same evidence same test); tinct same evidence United States under purposes for both test two to determine 1509, Michener, 789, v. 331 U.S. 91 67 S.Ct. respond separately to intent and (1947) curiam) proceed (per (single L.Ed. 1818 claim); Morgan, Ebeling the double v. ing; punishments procur and for convictions 31, 625, 710, 711-12, 35 S.Ct. 59 U.S. 630 237 ing plate genuine $10 a which Federal (1915) (single proceeding; L.Ed. 1151 convic printed, having been Reserve Notes had and of tearing, punishments for six counts of tions and cutting, plate, possession a of of such violations 18 injuring mailbags, in and United States 264; under same U.S.C. offenses held distinct § Code, test; (8th of 189 of the Federal Criminal reversing § violation affirmed; 157 F.2d 616 Cir. evidence under the same 1946)); offenses held distinct v. American Tobacco Co. United States, test); States, 781, 1125, 229 89, v. United evidence Gavieres 66 S.Ct. 328 U.S. 787 421, 23, 338, 44, 55 L.Ed. 1129, (1946) (single pro 422 U.S. 343 1128 90 L.Ed. 1575 (1911) (two proceedings; and ceeding; punishments conviction for con 489 convictions trade, public insulting spiracy monopolization, punishment a officer in restraint of presence, monopolize of conspiracy violation Anti or word in his under Trust deed Act; Philippine 257 Penal Code of the Sherman offenses held distinct under article Islands, test); previous of because same States ex rel. Mar after conviction evidence United Hess, 537, 552, 379, behaving in an same and conduct of cus 317 U.S. words 388, place, (1943) public (single proceeding; a violation indecent in a 87 L.Ed. 443 manner Manila; defrauding city an offenses convictions for 56 ordinance instances test); through bidding the same held distinct under evidence United States collusive 394-95, 365, 80, McClaughry, projects, 183 U.S. 18 U.S.C. Carter §§ P.W.A. violations of $2,000 per separate L.Ed. 236 46 in S.Ct. forfeitures of affirmed; (1902) proceeding; damages (single plus martial con stance court inci conspiring punishment to de project each held distinct viction dence of fraud on States, test); the 60th a violation of Blockbur fraud the United offense under same evidence war, States, 299, 304, causing ger and fraudulent false S.Ct. article United (1980); ry punished offenses cumulative- at at 1438 S.Ct. States, 6, 11, rule Simpson United assumption underlying ly. 909, 912, Brown in- (1978); 55 L.Ed.2d 70 does not Congress ordinarily S.Ct. is that Ohio, 161, 166, offense under punish tend same Jeffers v. Accordingly, two different statutes. States, S.Ct. provisions proscribe statutory where two (1977) (plurality offense,” are construed they the “same (see White, J., concur opinion) opinion authorize cumulative part part, at ring dissenting indication absence a clear Iannelli v. United 2220); at S.Ct. contrary legislative intent. 1284, 1293 n. n. (Em- at 1438. added.) phasis In the Court stated INTENT I. LEGISLATIVE Biockburger consistently had rule been re- lied on ever since it was stated 1932: Biockburger as a rule of Applying armed crimi to the Congress statutory to determine whether has in a construction defining given that two nal and the statute provided situation statuto- action statute5 Supp.1976, claims to 5. Section defined be made the United war, violation of the crime of armed action and fixed the 60th article of for conduct criminal punishment unbecoming gentleman, as that crime follows: an officer and a vio war, lation of the 61st article of and for com penalty Armed Action 559.225. Criminal embezzlement, mitting violation of 5488 of exceptions. Except provided in subsec- section, the Revised any person Statutes of States and the United tion 4 of this who com- war, of the 62d article held to be within the mits by, with, under the laws of this state martial; use, assistance, jurisdiction through court offenses held or test); deadly weapon distinct aid also under the same evidence re Nielsen, guilty of the crime of armed criminal action conviction, and, punished by indictments; upon (1889) (two shall be L.Ed. imprisonment division of guilty plea corrections conviction and on a years. than three for a term of less bigamy, living i. e. one more than woman imposed punishment pursuant to subsec- this continuously as husband wife from Octo any punishment be in addition to tion shall provided with, 13, 1888; May ber to second indict by, law crime committed for the charged adultery ment with one of the two use, assistance, through aid of or the or 14, 1888; occurring May women convicted weapon. dangerous deadly person a or No for unlawful cohabitation to bar a held subse eligi- under this subsection shall be convicted quent prosecution adultery for under the same probation, parole, ble conditional release for test, bigamy evidence since the continuous of n or imposition suspended or sen- execution of intercourse, necessarily implied fense so sexual years. period for a of three calendar tence proof adultery require proof did not of a Any person a of- 2. convicted of second required bigamy). fact not also to show pun- of armed criminal action shall be fense phrase meaning The claim that the of the by imprisonment by the ished division multiple punishment “same offense” the for a punishment imposed pursuant of not less five corrections years. term than meaning context in fact different the multiple phrase pros the “same offense” in the any this subsection shall be punishment addition to justification. requires ecution context We can provided by law for the crime nothing impose intent to find with, use, by, through committee or the [sic] punishments, greater one for offense two assistance, dangerous deadly aid or or offense, which and one for the lesser included person weapon. this No convicted under classify refusing justify the two would parole, proba- eligible shall be subsection tion, “same under the double crimes offense” suspended imposi- conditional release or clause. If a could state period for a tion or execution of sentence meaning phrase manipulate the of the “same years. five calendar as it is used the fifth amendment to offense” Any person a sub- convicted of third or Constitution, no there would be reason sequent action offense of armed criminal legis prevents suppose by imprisonment by punished Constitution shall be expression authorizing, by lature from a clear for a term of corrections of not less division intent, prosecution pun sequential years. punishment imposed than ten pursuant greater included of and lesser shall in addi- ishment subsection be any punishment provided by tion to law fense. involving convictions under offense, decision in this case the rob- underlying statute,6 that it is bery degree statute, we find in order to armed criminal action provision plainly not the case that “each given the statute application discern the which the other requires proof of a fact prior prosecutors courts and Missouri’s committing does not.” A conviction for the infor- the form of cases. We examine with, degree “by, through or robbery first charge armed used to mation or indictment use, assistance, dangerous or or aid of action, and after a before criminal both 559.225, Supp. deadly weapon,” RSMo § armed criminal charging standard form for proving all the cannot be had without we examine approved; and action was robbery first of the offense of elements used in sub- jury form of instructions - Vitale, U.S. degree. See Illinois action, charge of armed criminal mitting -, -, patterned instruc- and after a both before (1980); at action criminal submitting armed tion for 1439; Oklahoma, 433 Harris v. approved. Greene, 160 United States criminal ac- of the armed language App.D.C. 489 F.2d shows that the General Assem- tion statute Thus, pre- Assembly the General should defendant con- clearly intended that a bly punish- sumed not to have intended that shall be action of armed criminal victed statutes. both ment be under action armed criminal punished for both Nevertheless, at 1438. felony. Section underlying and for Assembly has in we find that the General 571.015, 559.225, (now Supp.1976 § RSMo expressed in unequivocal terms clear and “any 1978) expressly provides RSMo its intent Supp.1976, felony under the person who commits authorize conviction and with, through the by, or of this state laws underly- and for the armed criminal action use, assistance, or aid of conclusion, arriving at this ing felony. the crime of guilty of weapon is also deadly available we test and standard apply every added.) (Emphasis criminal action." armed First, law. we con- to us under Missouri provides statute criminal action The armed language plain meaning sider the punish- separate in three subsections requirements of our used. We consider imprison- years’ than three ment of not less regarding own constitution construction offense, five not less than every reported ment for the first the statute. We examine thereof, charge committed, with, agent, in by, through clerk or the crime wife, servant, use, assistance, agent, dangerous or clerk or or aid of a will of such the by ant, wife, deadly weapon. person No convicted under of such serv- violence to the parole, eligible by putting subsection shall be agent, him or her clerk or or suspended probation, or conditional release injury to his or hér in fear of some immediate imposition sentence for or execution of robbery adjudged guilty person, in be of shall years. period of ten calendar degree. the first provisions shall not 4. The of this section 560.135, provided: Supp.1975, RSMo Section apply in to the defined sections 559.- felonies robbery Every person in the of convicted 564.610, 564.620, 564.630, 005, 564.590, and by dangerous degree and means of a first 564.640, RSMo. every weapon person deadly convicted of and by any degree felony robbery underlying other in this case was rob- in the first 6. The 560.120, by bery degree, by imprisonment punished in § as it was defined be means shall punishment for which was and the RSMo prescribed less than for not division of corrections 560.135, Supp.1975. RSMo robbery in § every years; person of convicted five 560.120, provided: Section RSMo by punished degree in second shall Every person of who shall be convicted by imprisonment of corrections the division feloniously taking property another of years; exceeding three five nor less than not every person presence, person, or his from his against by putting convicted of will, by person, his or his violence to by imprison- punished degree third shall be some immediate him in fear of ex- not ment the division of corrections injury person; convict- to his or who shall be years. ceeding five feloniously taking property an- of ed wife, servant, his other from the legislative contrary to the intent offense, which is years’ imprisonment for second phraseology em- made evident years’ imprisonment and not than less ten Allman inf. Rice ex rel. ployed. State ex legislative for the The intent im- third. 785; Hawk, 490, 228 v. 360 Mo. S.W.2d punishment underlying for the pose both Morris, v. 363 Mo. Steggall “compound” for the offense of felony and pronounce- S.W.2d 577. clearly unambigu- which part it is a is says what it . ment means sentence, ously expressed following of the which each three subsec- appears ex rel. at 189-90. See State 376 S.W.2d punishment pursuant tions: “The Kirkpatrick, v. 536 S.W.2d Stevenson any to this shall be in addition to subsection (Mo. 1976); rel. Dravo banc State ex punishment provided by (Mo. law for the crime 512, 517 Corp. Spradling, 515 S.W.2d v. with, use, by, through committed or 1974); Honest Elections v. Missourians for assistance, dangerous or aid Commission, 536 S.W.2d [instru- Missouri Elections deadly weapon.” nothing There is Consolidated (Mo.App.1976); ment] ambiguous meaning County or uncertain about the 1 of Jackson District No. School Bond, of this statute provision. provides (Mo.App.1973). 500 S.W.2d Sutherland, may punish felony 2A any state See also J. Statutes 46.01, punish pp. a second time in 48-49 also Statutory Construction § 1973). virtue its having (C. been committed ed. Sands 4th through deadly the use of a not free to We we are note that weapon. plain meaning is of the This statute construe the armed criminal action used, words and it is the unmistakable in- statute punishment as mere —enhancement Clearly, Assembly. tent of our General fel by implication numerous which amends 559.225, Supp.1976, provides for RSMo § Ill, statutes, ony Mo.Const. art. because more of the than mere enhancement Assembly prohibits the General § It underlying felony. for the calls sentence setting forth in without amending statutes crime and for the for conviction of second Sours full the statutes so amended. Conse- imposition of a second sentence. State, (Mo. 222 n. 10 banc we quently, cannot avoid the Valentine, 1980); S.W.2d State prohib- whether the double clause Hudson, 1979). Cf. State single its the imposition proceeding in a (Tenn.1978). S.W.2d 416 multiple for the same offense. interpretation and uniformity City was said Louis v. What St. 559.225, Supp.1976 RSMo application Crowe, (Mo.1964) fully 376 S.W.2d 185 is 1978), (§ confirms applicable to our armed criminal action for arm- both plainly authorizes statute: underlying for the ed action and criminal section now under

This of the statutes opin- original Sours felony. Following the unambiguous is clear and its scrutiny penal authorities prosecutors ion our susceptible of more language. It is they to this Court informally indicated Therefore, than we one construction. many as hundred to believed that as four resort extraneous matter might be af- prior six hundred convictions years room for construction because there no four opinion. fected statute, Bell ex rel. language. ap- such since the enactment Co., 349 Mo. called Phillips Petroleum state have been pellate courts 764; v. Rathjen Reorganized of times to review upon literally S.W.2d dozens action Shelby County, 365 armed criminal School Dist. R-II of convictions for both In none of underlying felony.7 Mo. 284 S.W.2d 516. We have no and the questioned an intent these was it ever right to read into the statute cases denied, 1977), (Mo. Valentine, 439 646 banc cert. S.W.2d State v. 584 S.W.2d 92 (1978) 1979) Rendlen, J.) unspecified (affirming (per J.) Donnelly, (three year (per for arm action and sentence sentences for both armed criminal robbery years Treadway, degree); for robbery action and fifteen v. ed criminal first State analysis deadly weapon. No amount exactly say intended to what concerning legis- said in the armed criminal action statute. premised presumptions where the arm- No case has been discovered the fact lative intent can obscure un- criminal action statute has been ed provides that a Supp.1976, appellate judges our trial and derstood action shall criminal person guilty of armed attorneys prosecutors, our assistant crimes, two one punished for both of be mean that general, Attorney to General every includes element which definition for a felo- punishment may once of the other. to”) (“in for ny and a second time addition of our state stat This construction by the felony the same if it was committed on the States Su- use, aid, binding ute is or assistance of a Clemens, J.) (three years App.1979) (per for consecutively); degree, to run State v. first consecutively Merritt, Manford, 1979) (Mo.App. (per to criminal action to run armed robbery 591 S.W.2d 107 (reversed degree) J.) (five years and remanded armed criminal ac first for hearsay); concurrently State v. admission of sen for error in tion to run with consecutive Burse, 1979) (per (Mo.App. robbery degree twenty years 583 S.W.2d 221 for first tences of and five with (Mo.App. Crist, years criminal J.) (thirty-five armed years for kill for with intent to assault years concurrently eight malice); Irvin, with for to run State v. S.W.2d 699 action attempted robbery Davidson, degree); 1979) Clemens, J.) (five years (per State v. first Sr. 1979) (per (Mo.App. consecutively 583 S.W.2d 208 criminal action to run for armed to 588 S.W.2d 738 State, J.) Sp. (unspecified for one Riley Higgins, twenty years robbery); sentences for v. 1979) Kelly, J.) (Mo.App. (per criminal and two counts count of armed of 582 S.W.2d (twenty-five action Hutchinson, robbery degree); (three years first State v. action to run for armed criminal Crist, J.) 1979) (Mo.App. (per consecutively of seven to concurrent sentences years years robbery for one of armed count each for two counts of first teen degree concurrently run with con with intent to criminal action to and one count of assault twenty-five years Pollard, (Mo.App. each for current sentences eight kill. State v. 588 S.W.2d robbery degree); Swofford, J.) (five years 1979) (per first State v. armed counts of for 1979) Hawkins, Pritchard, (Mo.App. (per concurrently S.W.2d 333 to run with five criminal action felony unspecified; J.) (underlying consecutively years twenty-five years sodomy and to run to for years run Medley, action to rape. for armed criminal three with State v. robbery Pudlowski, years consecutively first de 1979) (per (Mo.App. to ten for 588 S.W.2d 55 years intent to J.) (three twenty years gree with years for assault and fifteen for armed criminal action malice) (reversed bodily great for robbery degree); harm with State v. do defect in for first Burns, jury panel); 1979) (per (Mo.App. State v. Mays, Rein 588 S.W.2d 6 Reinhard, J.) 1979) hard, (Mo.App. (per J.) (five P. years criminal ac S.W.2d P. for armed years years action to run consecutively armed criminal fifteen for three for tion to run robbery to robbery consecutively years Tyler, first degree); for fifteen State v. first (Mo. Bargeon, Kennedy, J.) degree); 1979) (per 578 S.W.2d (Mo.App. years State v. S.W.2d 918 (twenty Gunn, years J.) (twenty-five App.1979)(per for for armed criminal action five consecutively to consecutively seventy-five years criminal action to run for rob armed seventy-five years run Jones, rape, rape); seventy-five years for State v. bery degree, for first Reinhard, 1979) (Mo.App. (per years kidnapping); State v. Wil 578 S.W.2d and ten for years liams, 1979) J.) (underlying felony unspecified; (per five (Mo.App. P. 587 S.W.2d 618 consecutively Crist, J.) (five years run criminal action to armed criminal action for armed to consecutive ble gree); for years twenty years ten for forci concurrently sentences of for rob to run bery with robbery Gant, years rape for first de degree); and five 586 S.W.2d first State (per Carter, (Mo. Somerville, J.) 1979) (re (Mo.App. P. State Welborn, J.) (five years Sp. App.1978) (per for versing criminal action conviction for armed concurrently conjunction with action to run armed criminal criminal action in where armed robbery degree); years State v. charged first criminal ten for but armed with assault action Woods, 1978) (Mo.App. (per conjunction S.W.2d 942 was sub with murder Crews, Clemens, J.) (three years instructions); armed criminal jury State mitted twenty years Gunn, consecutively J.) 1979) (per (Mo.App. to run action 585 S.W.2d (sentences Tilley, robbery degree); underlying unspecified; un first Reinhard, J.) 1978) (per (Mo.App. specified; ac S.W.2d 346 (fifteen years consecutively for armed criminal convictions to run tion, action robbery, for armed criminal degree and three counts of first attempted years malice); rob ten State v. with intent to kill with assault State, bery degree); Brown, 1979) (per first Simms (Mo.App. Re S.W.2d413 McMillian,J.) 1978) (Mo.App. (per inhard, J.) (thirty years S.W.2d 801 for one count of P. (three years consecutively run concurrently action to for armed criminal run criminal action to armed ten robbery years first to twelve years each for two counts of Jones, (Mo. degree). degree); State recently patterned approved This v. Mar preme Hospital Court. In Memorial in armed criminal icopa charge charging for use County, action, 25.02, L.Ed.2d the patterned United States Su MACH-Cr the our preme charge Court stated: is not func is as follows: “[I]t state contrary tion to construe a statute Jurors) (Circuit Attorney) (Grand highest the given by the construction (City) the of (Prosecuting Attorney) Missouri, court of a Id. at State.” _, of (County) of State 1081; Skinner, defendant, O’Brien v. in violation the charge(s) that RSMo, the committed of Section action, felony class of armed criminal A involving the con- reported decisions punishable upon conviction under Section action and victions armed criminal for both RSMo, (571.015.2)(571.015.3), (571.015.1) felony, the the armed criminal underlying about) the (on) (on [date], in or in separate action was entered in charge of_, (City) (County) Mis State of charging underlying the count from that souri, one of the the defendant [inserí felony. The two-count information omitting number and following, brack typical. alleged: instant I case Count ets] day that on the of May, or about 14th felony of of committed the [name [1 ] County in and Jasper the of State —, allega in all felony] charged Count Missouri, of WILLIAM S. SOURS did incorporated tions are herein of which wilfully, unlawfully feloniously by and reference, and deadly means certain and dangerous and weapon, carry to-wit: away a handgun, Nine Hundred take, Forty- stea[l] felony, alleging ^[2] committed the all essential elements felony of [name of specificity thereof with the same Dollars, ($949.06) nine and 06/100 lawful felony], used and charge in a of that America, money of the United of. States personal property forego the and of Mr. the money The defendant committed Quick, ing there felony felony] by, then and in the lawful care of of [name Carnes, use, and of custody through and assistance and aid Kendall then instrument) (deadly weap a (dangerous and putting there the said Kendall on) (, and) Carnes in fear an injury immediate person

his and then and there did feloni- ((On) (On about) [identify or [date] rob, take, ously carry away steal and ], the particular jurisdiction court and said money personal property of the offense of defendant was convicted of, and)) presence (, of and action armed criminal the will of the said Kendall about) ((On) (On [identify [date] per- Carnes with the intent to felonious particular jurisdiction ], court and manently deprive the use owner was convicted of offense defendant thereof and to the same to his convert action)). armed criminal own use. charges pre-patterned patterned Both II alleged: Count our statute has been univer- indicate that permit the day May, sally interpreted charging that on or about 14th underlying action and the County Jasper armed criminal Missouri, did counts. separate WILLIAM S. SOURS feloniously unlawfully and com- wilfully, commonly the instructions used Similarly, Robbery First felony, mit to-wit: De- jury to the submit use, with the aid and gree, assist- of the accused of armed guilt or innocence deadly weapon ance of a underlying felony ánd of the criminal action handgun. to-wit: a uniformly has illustrate that statute separate con- interpreted Jeffers v. been authorize n. both armed 150 n. 53 viction underlying felony, criminal action and the defined recently adopted pattern as does our heretofore in Instruction No. jury instruction, MAI-Cr 25.02. The and verdict-di-

recting instructions used in v. Tread- State Second, perpetration 1979) way, 558 S.W.2d are through done aforesaid typical: weapon, gun, aid or use of a to-wit: a by

held or his either the defendant accomplice, and INSTRUCTION NO. 7 Third, that the defendant acted either I, As to you Count if find and believe knowingly alone or with common beyond from the evidence a reasonable purpose together with in the another doubt: para- conduct to in the above referred First, September that on graphs, Louis, Missouri, City of St. State of you guilty then will find the defendant charge Rotha purse Grimes was in under Count II of armed criminal action. Hanks, by Jerry owned However, if do not find and believe you Second, that at that time place beyond from the evidence a reasonable defendant, another, acting with took foregoing, all of the then doubt each and the property from Rotha Grimes you guilty must find the defendant not against by causing her will her to fear under II of that offense. Count person, immediate to her injury Not in MAI-CR Third, defendant, acting with by Modified 2.12 another, property took the with the by the State Submitted permanently deprive intent Rotha Given property and Jerri Hanks of the Grimes any part and to convert it or INSTRUCTION NO. another, the use of the defendant and charged sepa- The defendant is with a rate offense in submitted to each Count Fourth, that the acted either defendant the evidence and you. Each offense and alone or with knowingly and common applicable law should be considered to it with another purpose together was or separately. Any evidence which para- conduct referred to in the above offenses has been limited to one of the graphs, purpose one should be con- charged or guilty then will find the defendant you offense by you sidered as another robbery in the first under Count I of charged purpose. other degree. guilty or You find the defendant However, you if do not find and believe any or all of the Counts guilty beyond from the evidence a reasonable him. submitted foregoing, you doubt each and all of the MAI-CR-2.70 guilty must find the defendant by the Court Given that offense. jury instructions use pattern Our modified 2.12 MAI-CR 7.60 action, MAI- submitting armed criminal by the Submitted effective promulgated Cr2d were Given in- verdict-directing January 1979. The provided which was for use struction NO. 8 INSTRUCTION under the involving cases a first offender II, you statute, As to if find and believe Count and “where armed criminal action a reasonable beyond sepa- the evidence underlying felony charged in a doubt: count,” rate is as follows:

First, defendant, acting (As Count_, if) (If) you find and another, rea- beyond the crime of rob- committed believe from the evidence bery degree, felony, sonable doubt: cumulative Congress had not intended First, that guilty un- defendant Count_of offense, question ([name punishments. der The constitutional In the Court. be felony it is all circumstanc- could reserved if a under intent offense, if a in which es]) ([name of the it is other cases of our it is in the case less clear than misdemeanor under some circumstanc- was statute, the constitu felony under other circum- criminal action es a armed stances, reserved. question also has been the circumstances mak- tional include States, ing felony]), Simpson it a v. United (1978); 909, 912, 55 Iannelli L.Ed.2d 70 S.Ct. Second, committed the defendant 785-86 nn. v. United through or by, that offense 17-18, 17-18, nn. 1293-1294 use, of (dangerous assistance aid or v. Unit (1975). See Jeffers 43 L.Ed.2d instrument) (deadly weapon), 137, 155, 97 ed you guilty then will find the defendant unique (under _) armed criminal ac- Count wording the Missouri statute tion. clear, unequivocal intent positive and However, not find and believe you if do not us a similar doubly punish, does leave beyond from the evidence a reasonable armed wording of the unique option. The propositions, and all of these doubt each we criminal action statute dictates you guilty must find defendant federal bullet and meet must bite the that offense. issue.8 constitutional you guilty If do find the defendant (under _) armed criminal ac- Count AND MULTI- II. DOUBLE JEOPARDY tion, pun- you will assess and declare his THE FOR PLE PUNISHMENT imprisonment by ishment at the division SAME OFFENSE by you, for of corrections a term fixed analysis can to the There is little we add or more years but not less than three Sours v. given the life imprisonment. than 208, 211-14, State, (Mo. 218-21 593 S.W.2d We have measured the in- legislature’s incorporate that 1980), would banc and we regarding Supp.1976 tent RSMo § to- opinion into our analysis by reference (now 571.015, 1978) test by every § originally the opinion day, and reinstate to us the law and standard available under can be reduced published. argument inescapable Missouri. conclusion is simple syllogism: Assembly in- the Missouri General did (i) clause jeopardy The double impose armed crimi- tend to fifth amendment any .punishment nal action “in addition to prohibits Constitution States provided by law for the crime committed person twice punishing state with, assistance, through use, or or by, v. offense. Benton same deadly aid of a [instrument] Maryland, 395 U.S. Assembly did clear- weapon.” The General 2056, 2061-63, punish- ly impose separate intend to two Pearce, (1969); North Carolina ments for armed criminal action and included lesser offense. State (Mo. Neal, banc we point, At this the mandate that recon- S.W.2d Parsons, 1974); S.W.2d light help sider in offers little Whalen (Mo.1974). guidance. In Whalen it was determined 437-38 acquittal of the defendant there has been an 8. Firm as conviction be that neither our State, Murray jury.” 475 S.W.2d of the United a (Mo. citizen Missouri nor a citizen Henderson, 1972); City punished Kansas for the same States should twice denied, (Mo.1971), offense, S.W.2d rt. to so hold under the Missouri Constitu- ce (1971). See require reinterpretation tion would our own State, clause, jeopardy art. Sours v. double Mo.Const. 1980). “only apply has where which been construed (ii) Armed criminal action armed criminal action includes all of the and the un prove derlying felony used to armed We ob- specified.” elements of the case, robbery criminal action-in this served that “the different result is no ” offense degree-are same felony.’ ‘any where the statute refers to purposes under the Court S.W.2d at test, evidence it is same because killing concluded that conviction “[a] proof the case that without had rape course of a cannot be requires any of proof fact not also offense of proving all the elements of the required prove armed criminal ac 693, rape.” 445 at at 1439. U.S. 100 S.Ct. - States, tion. Vitale v. United rejected government’s The con- U.S.-, 100 S.Ct. 2260. 65 L.Ed.2d rape were felony tention that murder (1980); 228 Whalen v. United evi- the same the same offense under States, 684, 445 U.S. Blockburger. dence test of 1432, 1439, (1980); felony contends that Government States, 6, Simpson v. United 435 U.S. “same of- rape murder are not the 912, 98 55 70 S.Ct. L.Ed.2d the for- Blockburger, since fense” under Ohio, (1978); Brown v. 432 U.S. require mer cases does not in all offense 53 L.Ed.2d is, 22- proof rape; that D.C.Code § of a States, (1977); 187 Jeffers United per- killing 2401 of another proscribes 137, 151, 97 2207, 2216, 432 S.Ct. rape or committing son in of the course (1977); Iannelli v. L.Ed.2d arson, etc. kidnapping robbery States, United 420 U.S. 785 n. proved does Where the offense 1284, 1293-1294 n. S.Ct. example, of a proof rape-for include (1975); L.Ed.2d 616 Harris v. United killing the offense is a where States, 19, 23-24, of a offense is perpetration robbery-the 560, 564, (1959); Gore of of course the offense different from v. United 388- rape, correct in and the Government 1280, 1282-1283, S.Ct. believing that cumulative (1958); Blockburger rape for a felony murder and United Blockburger. permitted would be under 76 L.Ed. S.Ct. case, however, of proof In the present Carter McClaughry, of rape necessary proof element of is a 394-95, 398, 46 L.Ed. murder, unper- we are felony (1902); Morey Common treated this case should be suaded that wealth, 108 Mass. other in which one differently from cases (iii) Therefore, every requires proof criminal offense separately clause prohibits punishing offense. element of another a armed ac- both for criminal regard would be no in this There felony. tion and for the underlying if six less- Congress, listing instead argument per- We continue find this alternative, er in included offenses suasive. differ- separately proscribed had the six We may application note that Whalen’s felony ent six species of murder under Blockburger doctrine a rule of provisions. It is doubtful statutory statutory appli- paralleled construction so for- imagined could have Congress given Blockburger in our cation effort drafting had mal a difference resolve the issue in Sours. we ascribe practical significance, and at Compare none to it. Sours, at with 593 S.W.2d at 219. 1439; 694,100 S.Ct. at Sours, underlying In we if the stated test evidence application same used action felony prove armed criminal supported by felony a a Sours is also single were named instead of offenses, in Illinois holding class of “it would be Court’s Supreme obvious States - generally did not consider the crime Vitale, -, we prosecution separate multiple murder as a described as Vitale, juvenile was its various elements. respondent, case. offense distinct Rather, speed killing to avoid in the course failing convicted of to reduce we treated a accident, ll-601(a) statutory separate robbery an violation as itself a charge offense, robbery species the Illinois Vehicle Code. The arose as a out an accident in which an automobile The State con- offense. lesser-included fatally by respondent driven struck and petition- which ceded that the Subsequently, wounded two small children. un- was fact the had indicted er been adjudication petition wardship had of which derlying felony, all elements respondent filed Circuit prosecution. murder proved been County, charging Court Cook Vitale robbery prosecu- subsequent We held the involuntary two counts of manslaughter. under the Double tion barred upheld Illinois the dis Clause, Neilsen, 131 since In re under proceeding missal of the second on the (1889), 176, 672, U.S. 9 S.Ct. 33 L.Ed. 118 it ground was barred the double a who been convicted of a has Vitale, 229, jeopardy clause. In re 71 Ill.2d having elements included in crime several 456, (1978). 16 Ill.Dec. 375 N.E.2d The 87 subsequently be tried for Supreme Court vacated the States con- lesser-included offense-an offense judgment and remanded the case for con sisting of the ele- solely one more judgment sideration whether the was based for which he has ments of the crime 974, on state or 439 grounds. federal U.S. Brown, already convicted. Under been 554, 99 58 S.Ct. true; a on a the is also conviction reverse Illinois Supreme Court certified that subsequent lesser-included offense bars judgment was based on federal constitu greater trial on the offense. grounds, tional and the United States Su at-, 100 S.Ct. at -U.S. preme again granted certiorari. 444 Supreme as Despite the Illinois Court’s 42, U.S. 100 62 29 S.Ct. L.Ed.2d offense, in Vitale that “the lesser sertion the principle Court reaffirmed that the failing requires proof no speed, reduce prohibits double jeopardy only clause not beyond necessary that which for convic is multiple for same prosecutions offense manslaugh greater, involuntary tion of the also protects against imposing multiple but ter,” greater “the its conclusion that - for the same offense. the ‘same’ as the offense is definition -, Accord, at U.S. 100 at 2264. S.Ct. it,” 71 within Ill.2d lesser offense included Ohio, 161, 165, Brown v. 97 S.Ct. 375 N.E.2d at 16 at at Ill.Dec. 168 North L.Ed.2d vacated Supreme Court the United States Pearce, 8 Carolina U.S. for the case judgment and remanded (1969). The S.Ct. of our “[bjecause further proceedings holding in Vitale its also reaffirmed Illinois relationship under doubts about Oklahoma, Harris manslaughter the crimes law between (1977): S.Ct. speed to to reduce a careless failure held, dissent, Harris, without we accident, an the reckless avoid and because felony that a defendant’s conviction prove rely will act or acts the State killing the course of murder based on manslaughter -U.S. are still unknown.” robbery subsequent an armed barred a at-, 100 S.Ct. at 2267. prosecution against defendant same forced to address We are here robbery. felony Oklahoma reserved in expressly issue require murder statute on its face did not Whalen, 100 S.Ct. at U.S. at proof to establish 1437; at murder; Simpson, 435 U.S. other felonies could underlie 912; Iannelli, at 785- felony-murder But at prosecution. S.Ct. Clause, 1293-94 nn. 17-18. purposes nn. Double Jeffers, against multiple punishments at at for the same U.S. S.Ct. conclude, 2218. We must for the reasons require It offense. would bifurcation of State, set forth in Sours 593 S.W.2d 208 meaning of “same offense” under the 1980), proof of the un jeopardy grant double clause. It would derlying felony-robbery degree-does power the state define the not require proof required of a fact not also meaning offense” as used in of “same action, prove armed criminal inor other Constitution, jeopardy double clause of the words, that proof of armed criminal action judicial implicit a traditional function. The necessarily proves fact every required to holding effect of such a would be that establish underlying felony. Conse jeopardy double clause would hereafter be quently, the two offenses are the “same only judi- a limitation on the executive and offense” jeopardy purposes, for double Vi branches, cial but not on the -—tale, at-, U.S. at 2266. government. branch of We do not believe at at appropriate that it is for this Court to make 1439; Harris, at at ruling. ruling such If such a to be 2912; Brown, at made, responsibility it is the of the United 2226, and the prohib clause States Court to make it. its the state punishing appellant opin- examination of the thorough After that, both offenses. We believe because the in Whalen v. United ions double jeopardy prohibits punishing clause offense, a person twice for the same “the original opinion we have concluded that our prosecution may not do in one trial what it State, 593 judgment v. S.W.2d Sours prohibited is doing from in two trials.” El (Mo. 1980), 208 was correct and should banc State, 893, (Ind. more v. 382 N.E.2d 894-95 supplemented by opin- be reinstated as our 1978). cases that apply See rationale of today. judgment ion We reverse the Harris v. single prosecu Oklahoma in the appellant trial court as it denied insofar tion Morgan, context. v. 592 State S.W.2d 796, relief from his for armed crimi- (Mo. 1980); Pinder, conviction 803 banc v. State action, 836, nal and set aside (Fla.1979); 375 and vacate Tyson So.2d 838 v. State, 1185, (Ind.1979); judgment 386 1193 conviction. We affirm the N.E.2d State, 932, (Ind. appellant Mitchell v. 382 N.E.2d 934 trial court insofar as it denied State, 893, 1978); Elmore v. 382 N.E.2d relief his conviction for (Ind.1978); 894-95 Frye, State v. 283 Md. degree.

709, 1372, (1978); Briggs 393 1375 A.2d v. State, 157, 159(Tenn.1978). 573 S.W.2d SEILER, BARDGETT, J., and MOR- C. 544, Neal, (Mo.

also v. 514 548 State S.W.2d HIGGINS, JJ., GAN and concur. Parsons, 1974); banc 430, (Mo.1974). 438 DONNELLY, J., separate dis- dissents senting opinion filed. prior judgment

If the vacation of our the remand of the case reconsideration RENDLEN, J., separate dissents in dis- light of Whalen was intended to lead this and concurs in dissent- senting opinion filed adopt Court to the view that the General DONNELLY, ing J. opinion of Assembly separate punish- is free to impose ments for two crimes that constitute the DONNELLY, dissenting. Judge, same offense under the traditional same 784, Maryland, In Benton v. test, evidence we are unable to so read 2056, (1969), the 23 L.Ed.2d 707 Unit- S.Ct. prepared Whalen and we are not to take Palko v. Supreme ed Court overruled step. States We believe that the United 149, Connecticut, 319, 302 U.S. S.Ct. Supreme States Court has heretofore re- (1937) applied the Double served that L.Ed. 288 as noted above. We Con- ruling believe that such a would of the United States abolish the Clause traditional states. jeopardy protection double stitution to the multiple case? I State, (1978), also In Soars S.W.2d Hass, 1980), a majority Oregon of this Court ordered think not. In a conviction crimi- under Missouri’s armed 43 L.Ed.2d 570 nal action statute set because it felt aside (1975), stated that “a State the Court * * * compelled general do so declarations restrictions as impose greater Oklahoma, law made in Harris law when matter federal S.Ct. impos- specifically refrains from this Court v. But- ing also North Carolina them.” See 1755, 1759, ler, Sours, 1980, in May On Missouri L.Ed.2d L.Ed.2d - U.S.-, va Supreme Court United States view, is my logic Whalen Sours, judgment cated the of this Court proscription of multiple punishments case to this “for remanded the punish- multiple is if the Pearce satisfied light further of Whalen v. consideration and autho- ments in this case were intended United Assembly-to hold oth- rized the General (1980).” May 27, mandate of erwise is make the course, Of May the mandate of 1980, inscrutable. binding is the law of the ease on this I respectfully dissent. Court. Pearce, In North Carolina v. RENDLEN, Judge, dissenting.

(1969), the United States INTRODUCTION guaran- stated “that Fifth Amendment * * * majority’s respectfully I dissent. The tee against has Blockburger v. mechanical treatment separate been said consist three consti- protections. protects against tutional It test as “same offense” L.Ed. prosecution second for the offense same is in jeopardy doctrine substantive double acquittal. protects after It my view a test and misapplication prosecution second for the same offense form substance. The against after And an exaltation of over protects conviction. jeopar- multiple punishments principal opinion for the same decides double offense. ^{[*] [*] [*]} >t dy clause forbids conviction and prosecution for armed criminal single a I agree princi- with the conclusion of the Blockburger. robbery and under action pal opinion that Missouri General As- so majority against tapestry a does sembly separate punish- intended two prose- largely dicta woven from successive degree ments be for first robbery by cases skillful conversion of cution and and agree armed criminal I action. do pre- “statutory construction” canon Vitale, holdings Harris and both Blockburger, rigid doctrine by into scribed cases, prosecution pertinent second are Supreme right. constitutional multiple punishments this case. See we Court’s mandate on reconsideration Neal, 550, (Mo. v. 551 banc by States, guided Whalen v. United 445 1974) J., (Donnelly, concurring). See also C. U.S. Rules 24.07. 23.05 and nor requires permits. neither so question The essential is: should this present this effort is little more regard apply holdings of Harris and Vi- opinion recasting original than a our tale, cases, prosecution both second in this by vacated the Court. multiple punishments case we when know charged was William Scott Sours United States Court de- danger- opportunity apply robbery degree by clined the means of the Harris 560.120, holding Simpson (§ ous deadly weapon RSMo 909, 913, 560.135, Supp.1975) S.Ct. L.Ed.2d 70 RSMo tactical, bypass, strategic, whether for (§ armed criminal action Supp.1976) participating reasons, in an armed procedure, state orderly other Quick Jasper of a Mr. robbery Store precluded raising a movant pled County. On October Sours post conviction constitutional issue on a January guilty charges and on both motion. imprison- years to five was sentenced seizing the constitutional eagerly Instead of and three ment on the conviction issue, a determina- we remand for should years on the armed criminal imprisonment sentencing court whether by tion Sours conviction, to run con- action the sentences deliberately pleading by- has by guilty State, 593 secutively. S.W.2d See Sours only passed orderly procedures1 state (vacated- (Mo. 1980) 209-210 banc not, he has after a determination that --, 2935, S.Ct. reaching we the far federal should address (1980)). question. constitutional It outset that the should be noted at the issue, it Turning to majority important fails to address the that the Fifth Amend the framers’ intent2 guilty plea of whether con Sours’ common law’s double embody ment stituted “a break in the chain of events” so defendant’s jeopardy protection preclude litigation jeop as to of the double or ac reprosecution following conviction ardy post-conviction issue in this Rule 27.26 charge.3 Brown quittal See upon a criminal Henderson, proceeding. Tollett v. Ohio, 1602, 1608, 258, 267, 93 36 L.Ed.2d (1977); L.Ed.2d 187 United States Henderson, Francis v. Wilson, 332, 340-342, 95 S.Ct. 1708, 1711, 536, 541-542, 96 48 L.Ed.2d 1013, 1020-1021, (1975). (1976); Wainwright Sykes, original draft James Madison tendered Amendment,4 later amended to of the Fifth Cf. Jeffers v. United form, concern that a de present its midst abridged new trial not be right fendant’s (1977). Recently in Weir v. erroneously a conviction obtained. See State, 1979), S.W.2d Wilson, citing Congress I Annals of id. questioned cognizability limited adoption At the time of jeopardy claim of double in a Rule 27.26 felonies, g., rape, e. proceeding following failure to number common law defendant’s murder, burglary al objection robbery, raise the at the trial level. The arson and fails the rule an more cer majority ready application to consider lowed for Weir, at 258: nounced criminal defendants un protection tain giv Today, clause. der the is now numerous deci- settled [I]t complex statutory proliferation en the sys- sions in both federal and state crimes, the doctrine’s recognized tems there is a deliberate it is that that where jeopardy employed double was in the bypass” 3. At common law 1. The “deliberate standard plea by determining The technical abatement. our in whether constitu nature courts acquit plea improperly preserved or autrefoits at trial was either autrefoits tional issues Crown, Hawkins, post-conviction proceedings 2 Pleas of the is sim convict. See be raised in 1777). plea (6th was an prejudice” Either standard em 522-537 ed. ilar to the “cause and subsequent prosecution ployed system making as bar to a federal deter absolute the brought Wainwright party ought into proceedings. twice “the not to be mination in habeas 2497, 72, n.1, Sykes, danger Id. at same crime.” 95 97 S.Ct. of his life for the J., n.1, (1977) (Stevens, 2500 53 L.Ed.2d 594 concurring). protected original proposal would have 4. The punishment or development one from “more than defendant 2. For a discussion of the historical ” . Unit- concept offense . . see Bartkus one trial for the same of double 341, Wilson, Illinois, 121, 151-155, ed States v. citing (1975), 695-697, opin- I An- (1959) (dissenting (1789). Congress Black). ion of Justice nals punishment The doctrine does not double original scope provide complete cannot on the limitation constitute a substantive cases. Neverthe many certain answers punish to define legislature’s power proc less in the constitutional construction v. United Whalen crimes. See ess, guided purposes we are by the 695-696, pro underlying the policies (concurring opinion (1980) L.Ed.2d and those tections afforded the framers White, J.); Rights. who ratified our Bill of (con- that of dou- aspect fountainhead of J.) Blackmun, Westen curring opinion of as jeopardy jurisprudence ble described the Drubel, Theory A General Towards to punishment appears double doctrine 81, 112-115 Jeopardy, Sup.Ct.Rev. Double (18 Wall.) parte Lange, Ex Jeopardy” (1978). “Twice also Note the sentencing L.Ed. 872 There (1965). The Court 75 Yale L.J. 311-313 legislative the authorization court exceeded multiple punish- the addressed Whalen statutory De- punishment crime. judicial the ment in terms of whether issue stealing post convicted of of- fendant was autho- legislative action had exceeded property provid- fice for which the statutes Lange, discussion of rization. After punishment, as for not imprisonment ed can best be described which noted above as fine of to year more than one or a $10 $200. case, a legislative authorization Lange to The court however sentenced one held, Clause Double “[t]he a fine year’s imprisonment and It $200. courts very precludes at the least federal trial having was that context of the court unless imposing consecutive sentences statutory authority exceeded its that The Fifth by Congress do so. authorized origins. double doctrine had its jeop- guarantee Amendment review, On the Court was concerned with respect simply ardy in this one embodies having legisla- the trial court exceeded within our aspect principal of the basic legislature’s tive con- authorization not legis- framework federal constitutional proscribe stitutional certain authority including power to define power, lative prescribe punishment acts as crimes and prescribe pun- criminal offenses and therefore. Court at stated: upon those found to be ishments opinion pris- We are that when them, with the guilty wholly resides Con- oner, case, by as in this of a valid reason gress.” Whalen, judgment, fully had one of the suffered L.Ed.2d punishments to which alone alternative seems self The reason this conclusion subjected him, power the law can apparent. say To court punish gone. further That but X life punish imprisonment crime we have then in- principle discussed as crime X certain acts that it define cannot shield, terposed its and forbid he and crime years to life punishable by five punished again should be for that of- years life punishable respec three X2 added.) (Emphasis fense. pro artifice tively, employs an intellectual Whalen v. United or no little viding the criminal defendant which majority holds protection. additional here, emphasized guides us that the decision applicable statutes that under then turns punishment” in terms “double convicted of armed rob could be defendant intent, stating “the dis- years to life or of bery punishable by five therefore, is Con- to positive whether and sentenced question, armed criminal action life,5 not be con provide.” so to but could gress years did three and if proceeding in at 722. victed of both the same 100 S.Ct. 1432 at 63 L.Ed.2d years 560.135, ranging life. provided from a minimum of 5 to that a 5. Section RSMo robbery degree degree robbery first person in Those convicted of convicted the rang- only weapon imprisonment by deadly to dangerous be sentenced means of a could years ing imprisonment of 5 to life. Id. from a minimum sentenced to death or could be so convicted the armed criminal action con Amendment remains a vital and essential (One ask, might viction must be vacated. safeguard against punishment by excessive why conviction?) the armed criminal action Georgia, legislature (see Coker The principal opinion skirts the Double purpose pro Clause’s historical to Higgins, S.W.2d harassment, tect the defendant reliti- 1979), appeal dismissed 446 gation, judicial usurpation legis Note, authority punish. lative See Twice (1980), redesigning the Fifth Amendment in 75 Yale L.J. Jeopardy, 266-267 purpose by Eighth serve the filled (1965). majority Instead the seeks to trans legitimate serves no function7 and violates form provision protecting against dou the canons of con orderly punishment ble into analogue a diluted struction. Eighth Amendment without measur justification for only apparent The ably enhancing protections the defendant’s as shown Though Eighth majority’s manipulation pun- above.6 of the double with, by, Subsequently through in the crime committed use, assistance, or 1975 the amended provided punishment dangerous

the statute and that the or aid of a or robbery degree robbery for both in deadly the first weapon. person convicted under No degree by dangerous in the first means eligible parole, this subsection shall be for deadly weapon imprisonment ranging would be probation, suspended conditional release or years from a minimum of 5 to a life term. imposition or execution of sentence for a 560.135, Supp.1975. § RSMo period years. of ten calendar 559.225, Supp.1976 provides: Section RSMo provisions 4.The of this shall section Except provided 1. subsection apply to the felonies defined in sections 559.- section, any person any who commits 564.590, 564.610, 564.620, 564.630, and with, by, under the laws of this state 564.640, RSMo. use, assistance, through or or aid of a dangerous deadly weapon guilty or is also robbery 6. It is true that conviction both and, upon the crime of armed criminal action degree the first and armed criminal action will conviction, punished by imprison- shall be prisoner’s eligibility parole. affect ment the division of corrections for a term Regulations Governing Granting Rules and years. punishment of not less than three Releases, Paroles, and Related Conditional imposed pursuant to this subsection shall be Procedures, Probation and Missouri Board of any punishment provided by in addition to law for the crime committed Parole, (1979). pp. delay 8-10 However such with, by, or upon parole eligibility present would be use, assistance, through the or aid of a dan- alone. conviction for armed criminal action gerous deadly weapon. person or No con- Id., 559.225, Supp.1976. The mere fact § RSMo eligible victed under this subsection shall be multiple occur and consecutive convictions parole, probation, conditional release dr eligibility imposed sentences not alter are does suspended imposition or execution of sen- parole any way. Regulations Rules and period years. tence for a of three calendar Paroles, Governing Granting Conditional Any person 2. convicted of a second of- Releases, Procedures, Missouri and Related pun- fense of armed criminal action shall be Parole, pp. by imprisonment by Board of Probation and 11-12 ished the division of five corrections for a term of not less than years. punishment imposed pursuant this subsection shall be in addition to punishment en has held that 7. This Court punishment provided by law for the crime impose which additional hancement schemes liability upon with, use, by, through committee or [sic] a crime if certain conviction of assistance, deadly or aid of a e., (i. previous are shown to exist convic facts tions) weapon. No under this convicted jeopardy. See are not violative of double eligible parole, proba- subsection shall be 558.016, (repealed); § RSMo 1969 tion, suspended imposi- conditional release or 1978; Johnstone, S.W.2d State v. period tion execution of sentence for a denied, (Mo.1960), rt. ce years. five calendar It is difficult Any person or sub- convicted a third perceive between a a functional difference sequent offense of armed criminal action the “armed sentence enhancement scheme and imprisonment by punished by shall be degree consecu criminal action-first division of corrections for a term of not less majority punishment plan” now holds tive years. than ten pursuant forbidden the Fifth Amendment to this subsection shall be addi- United States Constitution. any punishment provided tion to law for

QH offenses, guilty of two be found may guard against prose- is ishment doctrine underlying judicial arbitrariness. A con- and the cutorial and armed criminal action stitutional issue of some dimension would v. United felony. In Jeffers statutory 2214-15, if al- presented pattern be 147-150, 97 S.Ct. capricious lowed random and results in ar- (1977), assumed the Court L.Ed.2d were which some defendants convicted (conspiracy 18 U.S.C. 846 guendo, that one of constituent crimes and others of- included heroin) was a lesser distribute convicted of both without ascertainable an (conducting enter- fense 18 U.S.C. 848 justification. Such is not the case under a heroin), held that prise to distribute recognized our The legislature, statutes. prior pro- in a of 846 defendant convicted that a by majority, clearly intended jeopardy claim no ceeding had double committing felony a firearm person a with prosecution because respect to a later 848 punished for the un- convicted and both be successfully had earlier the defendant felony and armed criminal action. derlying fortiori, it charges. A to sever the moved “Any person any felony who commits under Jeffers, who tried be said with, by, through the laws of this State or for two of- proceedings in two convicted use, assistance, dangerous aid of a or assumed fenses, of which the Court one deadly guilty is of the crime of weapon also offense, could have be a included lesser pun- armed action . . . . The criminal proceeding single in a been tried for both pursuant imposed ishment to this subsection and so it is with Sours. pro- any punishment be addition to shall majority’s reliance on Harris Okla- The by by, crime vided law committed homa, 433 with, use, assistance, through or aid Ohio, 432 (1977) and Brown L.Ed.2d weapon.” or deadly Section dangerous 161, 97 53 L.Ed.2d uncertainty Supp.1976. First, Harris and (1977), misplaced. is is in Whalen legislative as to intent Further, cases in- prosecution there were present was noted Brown successive here. Double Clause risks of vexation and the serious volving “[t]he very federal courts from precludes least defendants attend- to criminal harassment Further, imposing consecutive sentences unless au- multiple prosecutions. ant in do by Congress thorized so.” specifically here was precise presented issue by Simpson the Court reserved penalties L.Ed.2d 912- States, 435 U.S. explicitly by here provided were some decided legislature. problem ambiguity Harris, which following teach- eight months lenity an provides which the rule of not, by the as asserted es that Harris was safeguard important against prosecutorial I here. dispositive of the issue majority, arbitrariness, judicial simply is not might of the Court add the mandate sum, present. in- when case us to decide this does direct Sours tent as two crimes punished that an act Har- “in v. Oklahoma.” light Harris clear, potential arbitrariness convic- that a defendant’s merely ris held As a judges is de minimus. prosecutors killing in felony based on a tion of murder result, dimension no issue of constitutional a barred of an armed the course by the arises the Fifth Amendment under that same subsequent prosecution criminal our Missouri armed operation of robbery. Harris Oklaho- defendant action statute. 2912, 53 ma, only that once decided Brown An examination of earlier United States of misdemeanor was convicted defendant opinions and summa- recent was barred joyriding, the valid- points up ry actions convicting the defendant ity of our Missouri armed criminal action auto felony included offense greater scheme which a who commits under prosecution. deadly weap- subsequent theft “[T]he Fifth Amendment prose- weapon.8 forbids successive principal opinion The ef- punishment fectively cution and objective. cumulative for a thwarts that greater offense,” (Em- and lesser included The majority fails to discuss the recent phasis added), Ohio, Brown v. nearly action of the Court on a identical (1977). at at 2227 Indeed the dismissing appeal issue an for want of a Court in Brown reiterated 432 question. substantial federal The Court 97 S.Ct. at 2225 the freedom of the legisla- appeal Michigan dismissed the from a Su- ture proscribe criminal conduct and pre- preme holding Court decision consecu- punishment. scribe punishment tive the federal does not violate Wayne constitution’s Fifth Amendment. Fifth Amendment jeopar- [T]he County Prosecutor v. Recorder’s Court dy guarantee principally serves as a re- Judge People Brintley, 406 Mich. prosecutors. straint on courts and The (Mich.1979) appeal 280 N.W.2d 793 dis- legislature remains free under the Double Brintley Michigan, missed sub nom. Jeopardy Clause to define fix crimes and punishments; but once the (1979). There, Michigan Supreme has acted courts may impose not more constitutionality addressed of convic- than punishment one for the same of- (similar Michigan tions statute under a prosecutors ordinarily may fense and not statute) the Missouri armed criminal action attempt punishment to secure that providing felony by that a committed Ohio, more than one trial. Brown v. person with an addi- a firearm constituted offense, tional for which one convicted was Not only majority disregard does the punished consecutively to be sentence Court’s consistent concern decisions from felony. imposed underlying on the Defend- Lange to scope legisla- Whalen with the ant violated contended his convictions tive authorization as to double rights protected by the Fifth Amendment. claims, it also recognize fails to 750.227b(b); See MCLA Id. at 794. The defendant’s interest in finality, the core val- Court, Michigan persuasive in a and com- ue furthered by the Double prehensive opinion dealing precise with the Clause, is implicated in unitary prosecu- presented, here held enact- tion cases. prime consideration in this ing the legisla- felony-firearm statute the unitary prosecution legislative case is the separate ture created a crime distinct from objective of deterring violent offenders by the underlying felony and intended that increasing penalties for felonies committed consecutive be imposed. years. Upon subsequent 8. At the time of the enactment for 5 of the armed a third or section, criminal action person statute law enforcement au- conviction under this publicity campaign warning thorities initiated a years. imprisoned shall be for 10 gun, go prison.” “use a (2) Whether the armed imprisonment prescribed The term of judice criminal action statute sub furthered by this section shall be in addition to the important goals these is a matter for of the sentence felony for the conviction Fixing punishment determination. for crimes attempt felony, or the to commit the province legisla- defined statute is the consecutively and shall be served with and ture, Alexander, not the courts. State v. preceding imprisonment imposed term of Mo. Higgins, 285 S.W. 985 (Mo. attempt for the conviction 1979), ap- 592 S.W.2d 151 felony. commit the peal dismissed, (3) imprisonment imposed term un- suspended. der this section shall person subject to the sentence mandated provides: 9. MCLA 750.227b eligible parole or this section shall not be (1)A person who carries or has his probation mandatory during im- term possession a firearm at the time he commits posed pursuant to subsection attempts felony, except to commit a readily apparent As is statute, from the face of the 227a, violation of section 227 or section indistinguishable important it is in all guilty felony, imprisoned and shall be details from the Missouri armed criminal action years. Upon a second conviction under supra. statute. See n.8 section, imprisoned shall be Bradley, by those actions.’ Mandel v. cided Brintley, N.W.2d 793 at 795-796. at of in that one the cases' involved consolidat- at 432 U.S. 173 the People Brintley, court appeal, majority ed has reached (1977). the Here of both firmly concluded that conviction to the con- opposed diametrically decision robbery armed offenses firearm and un- Brintley and seems clusion reached the (described as the “same offense” under was dismissed appeal concerned that here) was of majority opinion not violative want of substan- Supreme Court for protection against the federal constitution’s jurisdictional question. tial In federal prime Of jeopardy. Id. 799-800. by Brintley, filed appeal to the statement here, importance the United States Su- of both conviction claim was made that appeal from that preme Court dismissed robbery violated and armed felony-firearm “for want of federal judgment substantial doctrine.10 The jeopardy the double Su- question.” 444 U.S. rejected necessarily that claim preme Court refusal to disturb L.Ed.2d 317. Court’s appeal. Yet the ma- when it dismissed Michigan Supreme the conclusion of the Brintley de- and jority ignores or overlooks felony-fire- Court that conviction both on federal constitution- cides same issue robbery single proceed- arm armed While such action is defensible grounds. al ing did not violate the Fifth Amendment’s state con- adjudication in the context prescription precedential has value as a dis- provisions, square stitutional does position on the merits. Hicks Miran- Supremacy with the command Clause da, 332, 344-345, of state courts in the federal role (1975). We are bound system questions present- federal are when summary to follow that under the decision ed. Supremacy all command Clause as to develop- subsequent Neither do doctrinal VI, federal questions. Art. § disregard majority’s justify ments As recently explained States Constitution. Brintley. summary action in As the Court’s Court, by the United States Whalen, the noted in Court’s previously “[sjummary affirmances and dismissals the constitu- pronouncement, most recent want of a substantial federal with- tional issue was discussed in terms reject specific challenges out doubt punishment imposed exceeds whether the jurisdiction presented statement of Having authorization. de- judgment and do ap- leave undisturbed the consecu- pealed prevent Congress lower did intend They from. do courts termined 23— coming D.C.Code opposite by enacting conclusions on tive stated, clearly precise presented necessarily “Congress de- issues jurisdictional A PROOF SPECIFIC § filed on Octo- 750.227b OF REQUIRES statement 10. 15, 1979, Brintley Michigan, Appellant’s ber No. 79- Statement of Jurisdic- FELONY.” dismissed, tion, appeal page MR. SEN- 12. “IV. BRINTLEY’S Brintley’s BEEN UN- counsel TENCE HAS TWICE AUGMENTED argued punish- ARE THE DER conviction consecutive TWO STATUTES WHICH proceeding ment in one felony PUR- armed SAME DOUBLE FOR JEOPARDY Appellant’s firearm under Jurisdic- MCLA 750.227b consti- POSES.” tion, Statement of page multiple punishment. “V. JEOPARDY tuted double 15. THE DOUBLE argument headings contained the state- BARS MULTIPLE CONVICTIONS CLAUSE jurisdiction spell A ment of this claim. “1. FROM SINGLE PLACE, OCCURRING out ARISING ACT TIME, IS AND THE CLAUSE A SUB- AT AT ONE FOR DOUBLEJEOPARDY ONE Appellant’s STANTIVE THE Statement LIMITATION ON MICHIGAN ONE PURPOSE.” Jurisdiction, Appellant's page Supreme Court nec- 16. The LEGISLATURE.” Statement Jurisdiction, essarily rejected page in re- “II. all these contentions THE VIOLATION virtually spect identical II OF 750.227b §OF 750.227b ALLEGED IN COUNT MCLA § scheme to 559.- its consecutive EACH INFORMATION PROOF OF REQUIRED I, Supp.1976. rejection is of Such ALL ELEMENTS IN COUNT CONTAINED precedential are THE value in this case and we AND THUS THE OFFENSES WERE Miranda, it. SAME FOR PUR- bound 332, follow Hicks DOUBLE JEOPARDY 2289, 2290, Appellant’s POSES.” Statement Jurisdic- tion, page 11. “III. UNDER L.Ed.2d CONVICTION free exceptions to fashion to the rule it to enact in 23-112.”

chose add, might We if latitude,

the Congress why has such not-the

Missouri Assembly? General

I conclude the majority opinion confers

upon courts a role contemplated by neither

those who ratified the Fifth Amendment

nor supported by subsequent Supreme interpreting decisions it. As Justice claim, analyzed

Frankfurter a similar “In

effect, we are asked to enter the domain of

penology, and more particularly that tanta-

lizing aspect it, the proper apportionment punishment. Whatever views

entertained regarding severity punish-

ment, whether one efficacy believes in its futility,

its these are peculiarly questions of policy.” Citations omitted.

Gore v. United 357 U.S. 386 at

78 S.Ct. 1280 at

I submit majority opinion in the name doctrine invades the

power to define crimes prescribe punishment. Accordingly, I

must dissent. Missouri, Respondent,

STATE POLLOCK, Appellant. Eldwin

Connie WD 30896.

No. Appeals,

Missouri Court

Western District.

June 1980. Transfer Rehearing and/or

Motion for July

Supreme Court Denied Denied to Transfer

Application 9, 1980.

Sept.

Case Details

Case Name: Sours v. State

Court Name: Supreme Court of Missouri

Date Published: Aug 18, 1980

Citation: 603 S.W.2d 592

Docket Number: 61458

Court Abbreviation: Mo.