Sours v. StateSours v. State
- Reporters:
- ,
- Before:
- Welliver
Lead Opinion
This is an appeal from the denial after hearing of appellant’s Rule 27.26 motion to set aside convictions entered October 4, 1977. Appellant seeks relief from convictions based on pleas of guilty to an information in two counts charging robbery first degree by means of a dangerous and deadly weapon,
On September 21, 1978, appellant filed a motion to vacate the convictions and sentences, alleging that his attorney rendered ineffective assistance; that the plea was coerced by the threat of the use of allegedly false testimony to be given by Charles Ma-han; and that the conviction for both first degree armed robbery and armed criminal action placed him in double jeopardy. On April 3, 1979, appellant by appointed counsel filed an amended motion alleging that the conviction for both offenses violated appellant’s constitutional right to be free from double jeopardy; that the consecutive sentences should be vacated because it is not mandatory for a sentence under the armed criminal action statute to run consecutively with the sentence for the underlying felony; that the trial court did not properly advise the appellant as to the range of punishment for the crimes with which he was charged; that the trial court failed to obtain an adequate factual basis before accepting appellant’s guilty pleas; and, that the sequence in which the appellant was to serve the two sentences should be reversed so as to permit him his statutory opportunity to be released on parole.
In a hearing held April 16,1979, appellant and his attorney withdrew all of the allegations contained in the amended motion except the claim based on double jeopardy and that based on the court’s alleged erroneous assumption that the armed criminal action statute required consecutive sentencing. In this hearing, appellant and respondent stipulated that both of the charges filed against appellant arose from the same occurrence, and that there was only one robbery involved. ■
On April 19,1979, the court sustained the part of the motion that was based on the court’s erroneous assumption that it could not make the armed criminal action sentence run concurrently with the robbery sentence. As a correction of the sentence entered January 5, 1978, the court resen-tenced appellant to five years on the robbery charge and three years on the armed criminal action charge, the sentences to run concurrently. Also on April 19, 1979, the court denied the part of the motion that was based on the claim of double jeopardy. On June 5, 1979, appellant filed with the circuit court his notice of appeal to this Court.
We are not here presented with a case involving multiple prosecutions for the same offense. The only question presented in this appeal is whether it constitutes double jeopardy to charge and convict a defendant in a single prosecution with both first degree robbery by means of a dangerous and deadly weapon and armed criminal action arising out of the same incident. We find that armed criminal action and the underlying felony, in this case robbery first degree are the “same offense’’ for double jeopardy purposes. We reverse the judgment of the trial court insofar as it denied appellant relief from his conviction for armed criminal action; we affirm the judgment of the trial court insofar as it denied appellant relief from his conviction for robbery first degree. To the extent that our decisions in State v. Valentine, 584 S.W.2d 92 (Mo. banc 1979) and State v. Treadway, 558 S.W.2d 646 (Mo. banc 1977), cert. denied, 439 U.S. 838, 99 S.Ct. 124, 58 L.Ed.2d 135 (1978) are inconsistent with this opinion, we disapprove those cases.
Analysis begins with the double jeopardy provision in the Missouri Constitution,
While the double jeopardy provision in the Missouri Constitution does not resolve the issue presented, Benton v. Maryland, 395 U.S. 784, 793-96, 89 S.Ct. 2056, 2063, 23 L.Ed.2d 707 (1969) has held that the double jeopardy clause of the fifth amendment to the United States Constitution does apply to the states through the fourteenth amendment, because it is “fundamental to the American scheme of justice.” The fifth amendment provides: “[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb.” This provision prohibits not only multiple prosecutions but also multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), decided the same day as Benton, stated that the guarantee against double jeopardy
has been said to consist of three separate constitutional protections. It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.
Id. at 717, 89 S.Ct. at 2076; Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977); State v. Parsons, 513 S.W.2d 430, 438 (Mo.1974). The Court in Pearce quoted at length from “the landmark case” of Ex parte Lange, 85 U.S. (18 Wall.) 163, 21 L.Ed. 872 (1874) as providing “the controlling constitutional principle.” 395 U.S. at 717, 89 S.Ct. 2072. The protection against multiple punishments was established in Lange in the following language:
For of what avail is the constitutional protection against more than one trial if there can be any number of sentences pronounced on the same verdict? Why is it that, having once been tried and found guilty, he can never be tried again for that offence? Manifestly it is not the danger or jeopardy of being a second time found guilty. It is the punishment that would legally follow the second conviction which is the real danger guarded against by the Constitution. But if, after judgment has been rendered on the conviction, and the sentence of that judgment executed on the criminal, he can be again sentenced on that conviction to another and different punishment, or to endure the same punishment a second time, is the constitutional restriction of any value? Is not its intent and its spirit in such a case as much violated as if a new trial had been had, and on a second conviction, a second punishment inflicted?
The argument seems to us irresistible, and we do not doubt that the Constitution was designed as much to prevent the criminal from being twice punished for the same offence as from being twice tried for it.
85 U.S. (18 Wall.) at 173. The principle that the double jeopardy clause prohibits double punishments for the same offense has been reaffirmed in subsequent decisions of the United States Supreme Court in Simpson v. United States, 435 U.S. 6, 11 n. 5, 98 S.Ct. 909, 55 L.Ed.2d 70 (1978); Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977); Jeffers v. United States, 432 U.S. 137, 97 S.Ct. 2207, 53 L.Ed.2d 168 (1977) (plurality opinion, at 1.5, 97 S.Ct. at 2218; opinion of Stevens, J., concurring in part and dissenting in part at 159 n. 5, 97 S.Ct. at 2220 n. 5); and Iannelli v. United States, 420 U.S. 770, 786 n. 18, 95 S.Ct. 1284, 43 L.Ed.2d 616 (1975).
On more than one occasion, this Court has held that “where in law and in fact there is only one crime,” the protection of the double jeopardy clause against multiple punishments for the same offense forbids convicting and punishing a defendant for two offenses in one proceeding. State v. Parsons,
In State v. Parsons, 513 S.W.2d 430 (Mo.1974), the defendant was convicted in one proceeding of first degree murder of his wife by bombing (Count I), and of putting a person in danger of bodily injury or death by wilfully and maliciously exploding a bomb (Count II), a violation of
The bombing described in each count was the identical, self-same bombing. The person charged in Count I to have been killed by the bombing is the identical, self-same person whose life was charged to have been endangered by bombing, in Count II. The bombing which endangered the victim’s life was one and the same, inseparable and indivisible with the bombing which took her life. The victim’s death was instantaneous and simultaneous with the explosion of the bomb. The bomb was the death weapon. The necessary act toward the commission of the murder was the bombing. Likewise, the necessary act toward the commission of the bombing was the identical act necessary to constitute the crime of murder. The bombing was an incident included in the crime of murder as charged, but the state has obtained a conviction not only of the crime of murder by bombing but also a conviction for the incident of bombing. Absent a waiver ... a person cannot be “tried and convicted for a crime which has various incidents included in it,” and at the same time be tried for one of those incidents, “without being twice put in jeopardy for the same offence.” In re Nielsen, 131 U.S. 176, 188, 9 S.Ct. 672, 676, 33 L.Ed. 118 (1889).
There was but one crime. . The state cannot split a single crime and prosecute it in separate parts. State v. Toombs, 326 Mo. 981, 34 S.W.2d 61, 64 (1930); State v. Whitley, 382 S.W.2d 665 (Mo.1964); State v. Richardson, 460 S.W.2d 537, 539 [1] (Mo. banc 1970). If there is but a single act of force proved as an incidental means of committing a murder that act of force may not also be charged as a separate crime. In that situation only one punishment may be had.
513 S.W.2d at 437-38. (Emphasis added.) In State v. Neal, 514 S.W.2d 544 (Mo. banc 1974), the defendant was charged in one proceeding of robbery first degree by means of a dangerous and deadly weapon of Johnnie Walton (Count I) and with assault with intent to kill with malice aforethought of William Cordes (Count II) and of Johnnie Walton (Count III). The defendant was convicted and sentenced under all three counts. The Court reversed the conviction and sentence under Count III, stating:
First, the robbery in this case of Cordes Hardware by taking money from the custody of Johnnie Walton, Count I, was the result of the assault committed upon Johnnie Walton and it was the identical assault also charged in Count III. To thus split the single crime of robbery and prosecute it in Count I and a second time in Count III as an assault violated the rule against double jeopardy. State v. Richardson, 460 S.W.2d 537 (Mo. banc 1970). Accordingly, Count III was improperly submitted; and the judgment, insofar as it convicts defendant and sentences him to five years’ imprisonment for the offense there charged, must, therefore, be reversed.
514 S.W.2d at 5Í8. Thus, it is well-established in Missouri that if two statutory crimes constitute the “same offense,” the protection against multiple punishment embodied in the double jeopardy clause prohibits convicting a defendant of both crimes in a single proceeding.1
The test for determining whether two offenses are “the same” for double jeopardy purposes was stated in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932):
The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not. Gavieres v. United States, 220 U.S. 338, 342, 31 S.Ct. 421, 55 L.Ed. 489, and authorities cited.
The Biockburger test has been reaffirmed on numerous occasions, most recently in Simpson v. United States, 435 U.S. 6,11, 98 S.Ct. 909, 55 L.Ed.2d 70 (1978); Brown v. Ohio, 432 U.S. 161, 166, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977); Jeffers v. United States, 432 U.S. 137, 97 S.Ct. 2207, 53 L.Ed.2d 168 (1977) (plurality opinion, at 150, 97 S.Ct. at 2216; opinion of White, J., concurring in part and dissenting in part, at 158, 97 S.Ct. at 2220); Iannelli v. United States, 420 U.S. 770, 785 n. 17, 95 S.Ct. 1284, 43 L.Ed.2d 616 (1975); Gore v. United States, 357 U.S. 386, 388, 78 S.Ct. 1280, 2 L.Ed.2d 1405 (1958). The word “each” is essential to a proper application of the Biockburger criterion. If statute A requires proof of a fact not required by statute B, but statute B does not require proof of any fact not required by statute A, then the offense defined by statute B is a lesser included offense of that defined by statute A. The greater offense is the “same offense” as the lesser included offense for double jeopardy purposes. Brown v. Ohio, 432 U.S. 161, 167, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977); Jeffers v. United States, 432 U.S. 137, 146, 150, 158, 97 S.Ct. 2207, 53 L.Ed.2d 168 (1977); Harris v. Oklahoma, 433 U.S. 682, 682, 97 S.Ct. 2912, 53 L.Ed.2d 1054 (1977). See also United States v. Stavros, 597 F.2d 108, 112 (7th Cir. 1979). The double jeopardy clause prohibits successive prosecutions for both the lesser included offense and the greater offense, and it prohibits the imposition of a separate sentence for both the lesser included offense and the greater offense.
Comparison of the two statutes under which the defendant in the instant case was convicted is necessary for application of the Biockburger test. In this case, the defendant was convicted of robbery first degree, and armed robbery,
Every person who shall be convicted of feloniously taking the property of another from his person, or in his presence, and against his will, by violence to his person, or by putting him in fear of some immediate injury to his person; or who shall be convicted of feloniously taking the property of another from the person ofhis wife, servant, clerk or agent, in charge thereof, and against the will of such wife, servant, clerk or agent, by violence to the person of such wife, servant, clerk or agent, or by putting him or her in fear of some immediate injury to his or her person, shall be adjudged guilty of robbery in the first degree.
Every person convicted of robbery in the first degree by means of a dangerous and deadly weapon and every person convicted of robbery in the first degree by any other means shall be punished by imprisonment by the division of corrections for not less than five years; every person convicted of robbery in the second degree shall be punished by imprisonment by the division of corrections not exceeding five nor less than three years; every person convicted of robbery in the third degree shall be punished by imprisonment by the division of corrections not exceeding five years.
Section 559.225.1, RSMo Supp.1976 provided:
Except as provided in subsection 4 of this section, any person who commits any felony under the laws of this state by, with, or through the use, assistance, or aid of a dangerous or deadly weapon is also guilty of the crime of armed criminal action and, upon conviction, shall be punished by imprisonment by the division of corrections for a term of not less than three years. The punishment imposed pursuant to this subsection shall be in addition to any punishment provided by law for the crime committed by, with, or through the use, assistance, or aid of a dangerous or deadly weapon. No person convicted under this subsection shall be eligible for parole, probation, conditional release or suspended imposition or execution of sentence for a period of three calendar years.
As will be seen, the reference to “any felony” in § 559.225.1, RSMo Supp.1976 mandates the conclusion that the offense of armed criminal action includes the underlying felony. Since the double jeopardy clause prohibits the imposition of punishments both for the lesser included offense and for the greater offense, the appellant’s conviction for armed criminal action must be vacated and set aside.
The United States Supreme Court has never decided whether robbery and the offense of committing a felony by means of a dangerous and deadly weapon constitute the “same offense” for double jeopardy purposes. The Court expressly declined to rule on this issue in the recent case of Simpson v. United States, 435 U.S. 6, 98 S.Ct. 909, 55 L.Ed.2d 70 (1978). In Simpson, the defendants were convicted in two separate jury trials of two bank robberies committed in Middlesboro, Kentucky, one on September 8, 1975, and the second on November 4, 1975. For each of the two bank robberies, the defendants were convicted of violating
The Court held that “in a prosecution growing out of a single transaction of bank robbery with firearms, a defendant may not be sentenced under both
Cases in which the Government is able to prove violations of two separate criminal statutes with precisely the same factual showing, as here, raise the prospect of double jeopardy and the possible need to evaluate the statutes in light of the Blockburger test. That test, the Government argues, is satisfied in this case. We need not reach the issue. Before an examination is made to determine whether cumulative punishments for the two offenses are constitutionally permissible, it is necessary, following our practice of avoiding constitutional decisions where possible, to determine whether Congress intended to subject the defendant to multiple penalties for the single criminal transaction in which he engaged. Jeffers v. United States, 432 U.S. 137, 155, 97 S.Ct. 2207, 2218, 53 L.Ed.2d 168 (1977).
435 U.S. at 11, 98 S.Ct. at 912. The obvious implication of this analysis is that, had the legislature clearly intended that a person be prosecuted under both
In Jeffers, the defendant was charged with violations of 21 U.S.C. §. 848 (1970) conducting a continuing criminal enterprise to violate the federal drug statutes, and was charged along with nine codefendants with violations of
The critical inquiry is whether Congress intended to punish each statutory violation separately. ... In Iannelli v. United States [420 U.S. 770, 95 S.Ct. 1284, 43 L.Ed.2d 616 (1975)], the Court concluded that Congress did intend to punish violations of § 1955 separately from § 371 conspiracy violations. Since the two offenses were different, there was no need to go further. See 420 U.S., at 785-786, nn. 17-18 [, 95 S.Ct. 1284 at 1293-1294]. See also Gore v. United States, 357 U.S. 386 [, 78 S.Ct. 1280, 2 L.Ed.2d 1405] (1958). If some possibility exists that the two statutory offenses are the “same offense” for double jeopardy purposes, however, it is necessary to examine the problem closely, in order to avoid constitutional multiple-punishment difficulties.
432 U.S. at 155, 97 S.Ct. at 2218. (Emphasis added.) Here again, the obvious implication is that where the legislature does intend to punish two statutory offenses separately, but the offenses are the “same offense” under the Blockburger criterion, it is necessary to “go further” to avoid violation of the double jeopardy clause protection against multiple punishment.
The General Assembly clearly intended that both § 559.225.1, RSMo Supp.1976 (now
In two recent cases, this Court addressed the question whether convicting and punishing a person of both robbery first degree and armed criminal action constitutes double jeopardy. State v. Valentine, 584 S.W.2d 92 (Mo. banc 1979); and State v. Treadway, 558 S.W.2d 646 (Mo. banc 1977), cert. denied, 439 U.S. 838, 99 S.Ct. 124, 58 L.Ed.2d 135 (1978). In State v. Treadway, 558 S.W.2d 646 (Mo. banc 1977), the defendant was convicted’ in one count of robbery first degree and in a second count of armed criminal action. The defendant moved to dismiss the armed criminal action count of the information on the ground that prosecution for both robbery first degree and armed criminal action subjected him to multiple punishments for the same offense. The motion was denied and the defendant appealed his convictions. The Court observed that Missouri follows the “separate or several offense rule” and not the “same transaction rule,” in determining whether a de
Although Treadway did not apply the second half of the Blockburger criterion for sameness of offense, cases from other jurisdictions have found that armed robbery and the use of a firearm in the commission of that felony are distinct offenses under the Blockburger test because robbery contains elements not necessarily included in the felony-firearm offense. Kowalski v. Parratt, 533 F.2d 1071 (8th Cir. 1976), cert. denied, 429 U.S. 844, 97 S.Ct. 125, 50 L.Ed.2d 115 (1976); Wayne County Prosecutor v. Recorder’s Court Judge, 406 Mich. 374, 280 N.W.2d 793 (1979); Jones v. Commonwealth, 218 Va. 18, 235 S.E.2d 313 (1977). See also, United States v. Hearst, 412 F.Supp. 877 (N.D.Cal.1976).5
In each of these cases there is no difficulty with the claim that the felony-firearm
In Harris, the Oklahoma Court of Criminal Appeals upheld a conviction for robbery with firearms, Okl.Stat.Ann. tit. 21, § 801 (West 1958) (amended 1973), obtained in a second prosecution following a conviction for felony-murder, Okl.Stat.Ann. tit. 21, § 701 (West 1958) (repealed 1973), arising out of the same incident. The Oklahoma court reasoned that under the Blockburger test the felony-murder statute and the underlying felony were distinct crimes. Section 701 provided that “[hjomicide is murder . . [w]hen perpetrated without any design to effect death by a person engaged in the commission of any felony.” (Emphasis added.) The Oklahoma Court of Criminal Appeals stated that proof of the underlying felony was required to prove the intent necessary for the felony-murder conviction, but held that “robbery is a distinct offense and is not part of the crime of homicide nor is it an included crime.” 555
The Court’s conclusion that robbery with firearms is a lesser included offense of felony-murder shows how the “required proof” criterion of Blockburger must be applied. The crime of armed criminal action consists of two features: (1) any felony, and (2) the use of a dangerous and deadly weapon in the commission of (1). The first feature may be any one of a class of offenses, each of which consists in turn of several elements. If (1) specified a single felony, it would be obvious that armed criminal action includes all of the elements of the felony specified. For example, if § 559.-225.1 said, “any person who commits first degree robbery by, with, or through the use, assistance, or aid of dangerous or deadly weapon is also guilty of armed criminal action,” it would be obvious that armed criminal action includes first degree robbery and that the double jeopardy clause prohibits conviction and punishment for both offenses. Harris shows that the result is no different where the statute refers to “any felony.” Proof of armed criminal action still “cannot be had without” proof of the underlying offense. Harris stands for the proposition that when a statute defines a crime as “any felony” plus other elements, proof of the particular felony involved is required to prove that crime.7 In the language of Blockburger, the armed criminal action “provision [does not] require[] proof of a fact which the [robbery first degree] statute does not.” Thus, as Harris applies Blockburger, armed criminal action and the underlying felony constitutes only one of
After Harris, the application given the Blockburger test in Wayne County, Jones, Kowalski, Hearst, and Treadway cannot survive.
The argument is that .... armed robbery requires proof of the occurrence of a robbery, which is not required to prove felony-firearm, since that offense can be committed in the course of almost any felony. It is therefore contended that Blockburger does not bar convictions for both offenses.
This argument proves too much. Applying this argument to the situation confronted by the United States Supreme Court in Harris v. Oklahoma would lead to a result different from that reached by the Court. After all, robbery with firearms does not require that a murder occur. Nor does felony-murder require that the offense of robbery with firearms occur. The United States Supreme Court, nonetheless, declared that convictions for both felony-murder and the underlying felony of robbery with firearms could not stand.
Schwartz, supra note 7, at 851.
It has been argued that the rationale of Harris, which involved successive prosecutions first for felony-murder and then for the underlying felony, does not apply in the context of a single proceeding involving multiple charges. The argument that Harris does not apply in cases in which a defendant is convicted of both crimes at the same trial has been rejected in cases that follow Harris. State v. Pinder, 375 So.2d 836, 838 (Fla.1979); Tyson v. State, Ind., 386 N.E.2d 1185, 1193 (1979); Mitchell v. State, Ind., 382 N.E.2d 932, 934 (1978); Elmore v. State, Ind., 382 N.E.2d 893, 894-95 (1978); State v. Frye, 283 Md. 709, 393 A.2d 1372, 1375 (1978); State v. Innis, R.I., 391 A.2d 1158, 1165 (1978), cert. granted, 440 U.S. 934, 99 S.Ct. 1277, 59 L.Ed.2d 492 (1979); Briggs v. State, Tenn., 573 S.W.2d 157, 159 (1978). The argument that the double jeopardy clause does not prohibit punishing a defendant for both of two crimes charged in a single prosecution where one of the crimes is an incident included in the other also contradicts the holding in State v. Neal, 514 S.W.2d 544, 548 (Mo. banc 1974) and State v. Parsons, 513 S.W.2d 430, 438 (Mo.1974). This argument also overlooks the fact that the case for which the “required proof” test is named, Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), itself involved a single prosecution. “[T]he prosecution may not do in one trial what it
Cases in other jurisdictions have recognized that convicting a defendant of the use of a firearm in the commission of a felony and of the underlying felony violates the double jeopardy clause. Whitton v. State, 479 P.2d 302 (Alaska 1970); State v. Boudreau, 113 R.I. 497, 322 A.2d 626 (1974); State v. Hudson, Tenn., 562 S.W.2d 416 (1978). In Hudson, the defendant was convicted in one trial of four offenses — robbery by the use of a deadly weapon,
To give a literal interpretation to the . phrase [“is guilty of a felony”] results, of course, in the conclusion that this statute creates and defines a new felony that is separate and distinct from the “principal” felony which is committed by means of a firearm. But such a construction would result in a statute that could not be applied as the legislature intended without running afoul of the double jeopardy prohibitions of our state and federal constitutions. Separate convictions for the “principal” felony and the new use of a firearm felony could not stand without violating the double jeopardy clause.
In State v. Boudreau, 113 R.I. 497, 322 A.2d 626 (1974), the defendant used a .22
In Whitton v. State, 479 P.2d 302 (Alaska 1970), the defendant was found guilty in one proceeding of robbery,
Having determined that a conviction for both robbery first degree and armed criminal action places a defendant twice in jeopardy by multiplying the punishment for one offense, we must consider the appropriate remedy.11
The armed criminal action statute provides in three separate subsections for sentences of not less than three years for the first offense of armed criminal action, not less than five years for the second offense, and not less than ten years for the third.
We reverse the judgment of the trial court insofar as it denied appellant relief from his conviction for armed criminal action; we affirm the judgment of the trial court insofar as it denied appellant relief from his conviction for robbery first degree. Appellant’s conviction for armed criminal action is hereby set aside.
BARDGETT, C. J., SEILER, MORGAN and HIGGINS, JJ., concur. RENDLEN, J., dissents in separate dissenting opinion filed. DONNELLY, J., dissents in separate dissenting opinion filed and concurs in separate dissenting opinion of RENDLEN, J.Notes
. In State v. Richardson, 460 S.W.2d 537 (Mo. banc 1970), the defendant pleaded guilty in one proceeding to attempted robbery by means of a . deadly weapon, and was found guilty by a jury in a subsequent proceeding of assault with intent to maim without malice. Both prosecutions were based on a single incident. The sentence for the attempted robbery was ten years; the sentence for the assault was three years. In reversing the second conviction, the Court relied on the rule that “ ‘[i]f there is but a single act of force proved as an essential element of the crime of robbery, then such act of force cannot be availed of as constituting the separate crime of assault.’ ” The Court cited Wilkerson v. State, 41 Ala.App. 265, 130 So.2d 348, 349 (1961); State v. Miller, 129 Cal.App.2d 305, 276 P.2d 846, 848 (1954); People v. Logan, 41 Cal.2d 279, 290, 260 P.2d 20 (1953); State v. Wines, 47 N.J.Super, 235, 135 A.2d 543, 544 (1957). In each of these cases, the defendant was charged with multiple offenses in a single proceeding, and it was held that only one conviction and punishment could be had.
. Justice White did not think that the
. Appellant seeks to distinguish Treadway on the ground that the defendant in Treadway was charged with robbery first degree and armed criminal action whereas Count I of the information in this case charged appellant with armed robbery,
. Treadway did quote language found in Kowalski v. Parratt, 533 F.2d 1071 (8th Cir. 1976) that the “gist” of each offense was different from that of the other. Kowalski found that robbery and robbery with firearms were not the “same offense” because the Nebraska weapons offense could be shown by proof of “any felony” (and thus, robbery has elements not necessarily in felony-firearm). Valentine does not expand on the analysis used in Tread-way. Valentine neither cites Blockburger nor attempts to state what elements of robbery are not in armed criminal action. Valentine merely cites Treadway for the claim that “each crime contained elements not found in the other.” 584 S.W.2d at 96. Neither opinion analyzed the impact of Harris v. Oklahoma, 433 U.S. 682, 97 S.Ct. 2912, 53 L.Ed.2d 1054 (1977) on the proper application of the Blockburger criterion to the type of “felony-plus” statute involved here.
.Wayne County Prosecutor v. Recorder’s Court Judge, 406 Mich. 374, 280 N.W.2d 793 (1979) reversed the dispositions given two cases by separate panels of the Michigan Court of Appeals. In one case, the defendant was convicted in a single trial of second degree murder and of a violation of Michigan’s felony-firearm statute,
The crime of robbery as defined at common law involves a forceful taking by “violence or intimidation” but such force need not be by means of the use or threat of presenting a firearm. Robbery may be committed in many ways, such as by partial strangulation or suffocation, or by striking or beating with the fist or other less dangerous devices. . .
The “gist” of Code § 18.2-53.1 is the use of a firearm in situations where it is likely that weapons may be used to injure victims of robbery or bystanders. Under the statute, such use is made a separate and distinct offense. Thus, the crime of robbery and the crime of using a firearm in committing robbery have different elements as a matter of law, although they may have common elements as a matter of fact.
Id., 235 S.E.2d at 315. Again, Kowalski v. Parratt, 533 F.2d 1071 (8th Cir. 1976), cert, denied, 429 U.S. 844, 97 S.Ct. 125, 50 L.Ed.2d 115 (1976), affirmed the determination of the Nebraska Supreme Court in State v. Saxon, 193 Neb. 278, 226 N.W.2d 765 (1975) that felony-firearm does not include robbery (the underlying felony) as a lesser included offense. The court quoted the Blockburger criterion and stated:
Although the appellant assumes that count II [felony-firearm,Neb.Rev.Stat. § 28-1011 .-21 (Supp.1974)] required proof of the robbery alleged in count I [Neb.Rev.Stat. § 28-414 (Supp.1974)] that is not the case. The weapons statute is satisfied by proof that a weapon was possessed or used during any felony.
Id. at 1073. (Emphasis supplied.) In United States v. Hearst, 412 F.Supp. 877 (N.D.Cal. 1976), decided prior to the Supreme Court’s ruling in Simpson that Congress did not intend
This standard is satisfied by the two offenses charged here, for the reason that the first requires the use of any dangerous weapon in the robbery of a bank, whereas the second specifically requires the use of a firearm in the commission of any felony.
Id. at 879. (Emphasis in original.) The defendant was convicted and sentenced under both
. The Oklahoma court appeared ambivalent on this point. While it stated that the crime of robbery is not included in the crime of homicide, it also said that “the proof of the underlying felony is needed to prove the intent necessary for a felony murder conviction.” 555 P.2d at 80-81.
. Cf., Schwartz, Multiple Punishment for the “Same Offense”: Michigan Grapples with the Definitional Problem, 25 Wayne L.Rev. 825, 833 (1979):
Harris simply holds that convictions for both the greater offense and the underlying offense are prohibited. Put another way: Where offense number 1 consists of elements A and B and element B consists of a class of offenses, offense number 2, offense number 3 and so on, then one may not be convicted of both offense number 1 and the offense consisting of element B in that case. Although such a result is obvious where element B consists of a single offense, Harris mandates the same result when element B can consist of one of several offenses. Where proof of one offense requires proof of another offense, convictions for both are barred, even though the underlying offense required to prove the former changes from case to case.
This understanding of the Blockburger test does not affect our holding in State v. Smith and Hodges, 592 S.W.2d 165, No. 61378 (Mo. banc, filed Dec. 6, 1979) that trespass is not a lesser included offense of burglary. In Smith and Hodges, we held that it is the elements of the greater offense and not the allegations of the greater offense found in the indictment or information which must be compared with the legal and factual elements of the lesser offense to determine whether one offense is a lesser included offense of another. Unlike the burglary statute involved in Smith and Hodges, the armed criminal action statute defines the offense as consisting of any felony plus another element. Although a court need not’ examine the factual averments of the greater offense in applying the Blockburger test, a complete list of the elements of armed criminal action cannot be generated until the underlying felony is known. A criminal statute is nothing more than a description of a certain type of conduct coupled with a provision that the state will impose sanctions (fine or imprisonment) on any person who conducts himself in the manner described. An “element” of the offense is any part of the description which must be satisfied before the state may impose sanctions. The armed criminal action statute, like Oklahoma’s felony murder statute, incorporates by reference to the statutory definition of another offense (“any felony”) a portion of the description of the proscribed conduct. That part of the description is supplied only by observing which other statute is involved in the particular case.
. The two-count information filed against appellant on June 20, 1977, illustrates the fact that proof of armed criminal action cannot be had without proof of robbery first degree in this case. Count I alleged
that on or about the 14th day of May, 1977, in the County of Jasper and State of Missouri, WILLIAM S. SOURS did wilfully, unlawfully and feloniously by means of a certain dangerous and deadly weapon, to-wit: a handgun, take, stea[l] and carry away Nine Hundred Forty-nine and 06/ioo ($949.06) Dollars, lawful money of the United States of America, the money and personal property of Mr. Quick, then and there in the lawful care and custody of Kendall Carnes, by then and there putting the said Kendall Carnes in fear of an immediate injury to his person and then and there did feloniously rob, take, steal and carry away the said money and personal property from the person of, in the presence of and against the will of the said Kendall Carnes with the felonious intent to permanently deprive the owner of the use thereof and to convert the same to his own use.
Count II alleged
that on or about the 14th day of May, 1977, in the County of Jasper and State of Missouri, WILLIAM S. SOURS did wilfully, unlawfully and feloniously commit a felony, to-wit: Robbery First Degree, by and with the use, aid and assistance of a dangerous or deadly weapon, to-wit: a handgun.
See Jeffers v. United States, 432 U.S. 137, 150 n. 16, 97 S.Ct. 2207, 53 L.Ed.2d 168 (1977).
.
Any person who employs any firearm of any character as a means of committing or escaping from a felony is guilty of a felony, and on conviction of first offense shall be punished by imprisonment in the penitentiary for not less than one (1) year nor more than five (5) years, and on conviction of second offense shall be punished by imprisonment in the penitentiary for not less than five (5) years nor more than ten (10) years. The trial judge may in his discretion suspend all or part of the penalty imposed by this section.
The period of confinement imposed by this section shall be in addition to any penalty provided by law as punishment for any other felony, and shall run consecutively, and not concurrently, with any other period of confinement.
. The Tennessee Supreme Court accordingly concluded that the statute should be read not as creating a new felony but as amending Tennessee’s other felony statutes by implication through the addition of a sentence-enhancement provision. We are prevented from similarly construing
[Tjhe Fifth Amendment double jeopardy guarantee serves principally as a restraint on courts and prosecutors. The legislature remains free under the Double Jeopardy Clause to define crimes and fix punishments; but once the legislature has acted courts may not impose more than one punishment for the same offense and prosecutors ordinarily may not attempt to secure that punishment in more than one trial.
Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221 (1977). It is not the creation of a new crime that offends the double jeopardy guarantee; it is the provision that a defendant be convicted and punished for both the new crime and the underlying, included felony that offends.
More importantly, we are not free to construe§ 559.225 as Hudson construed the Tennessee firearm-felony statute because amendment of statutes by implication is forbidden by Missouri’s Constitution.Mo.Const. art. Ill, § 28 prohibits the General Assembly from amending statutes without setting forth in full the statutes so amended. State v. Valentine, 584 S.W.2d 92 (Mo. banc 1979) rejected the claim that§ 559.225 violatedMo.Const. art. Ill, § 28 on the ground that the statute does not amend the punishment provisions of many other statutes but instead defines “an offense separate and distinct from other offenses.” Id. at 96.
. After the Supreme Court determined in Simpson v. United States, 435 U.S. 6, 98 S.Ct. 909, 55 L.Ed.2d 70 (1978) that Congress did not intend that both
. In State v. Treadway, 558 S.W.2d 646, 653 (Mo. banc 1977), cert. denied, 439 U.S. 838, 99 S.Ct. 124, 58 L.Ed.2d 135 (1978), this Court construed the phrase “in addition to” to permit the imposition of concurrent sentences for armed criminal action and the underlying felony, and held that the trial court must exercise its discretion whether to impose sentences consecutively or concurrently. Since we have determined in this case that the underlying felony, here robbery first degree, is a lesser included offense of armed criminal action, the determination that concurrent sentences may give effect to the legislative intent to authorize one sentence “in addition to” another does not solve the double jeopardy problem presented.
Dissenting Opinion
dissenting.
The principal opinion treats the Per Curiam in Harris v. Oklahoma, 433 U.S. 682, 97 S.Ct. 2912, 53 L.Ed.2d 1054 (1977) as decisive here.
In my view, we are not bound by general declarations of law made by the United States Supreme Court. See State v. Clark, 592 S.W.2d 709, 719 (Mo. banc 1979) (Donnelly, J., dissenting).
I respectfully dissent.
Dissenting Opinion
dissenting.
The principal opinion overrules State v. Treadway, 558 S.W.2d 646 (Mo.1977). In Treadway this Court upheld defendant’s conviction under