State v. Thompson, 659 S.W.2d 766

State v. Thompson

659 S.W.2d 766

Mo.

1983

Check Treatment

*1 Bruske, Marriage in In re

(Mо.App.1983). Missouri, Respondent, STATE conclusion, That by interpretation above, is reached in the follow- 478.245 § THOMPSON, Jr., Appellant. Otis

ing manner. Subsection 3 of 478.245 § provides adopted that local rules are to be 61790. No. by majority judges. of the circuit Sub- section four of the provides same section Missouri, Supreme Court of filing orders for centralized and as- En Banc. signment of cases heard associate Nov. judges adopted by are to be the circuit and associate judges. circuit

Within the confines of section as to orders,

rules and there is a sense of dis-

tinction judges partici- between the who

pate in rule making and those who vote

on orders for administration of associate Thus,

circuit court business. construed in parts, of its various the designation judges

“the circuit of the circuit” who

may adopt local rules refers to cir- only

cuit judges judges. and not to associate added).

Bruske at 293 (emphasis ques- No

tions herein affect validity raised

Rule Having 100.1.1. received less than the votes,

required twenty-two

removal fails.

Judge Corrigan William is declared duly presiding judge elected

Twenty-First Judicial Circuit to serve for two-year

the balance of his elected term or con-

until otherwise removed a manner opinion. By

sistent with this Judge

our temporary designating order Corrigan Presiding

William as Acting

Judge directing and our order the Missouri Eastern District to inter- Appeals, matter,

vene in this are reason rescinded having become moot. is de- declaratory relief

nied and dismissed.

RENDLEN, C.J., WELLIVER, HIG-

GINS, GUNN, and BLACK- BILLINGS

MAR, JJ., concur.

DONNELLY, J., in result. concurs *2 Louis, Cooper, appellant.

Bertram St. Ashcroft, Gen., Mor- Atty. John John M. ris, Gen., City, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍Asst. Jefferson Atty. respondent. Miller, Louis, curi- Stephen

B. St. amicus ae.

WELLIVER, Judge. requests

The state its motion its issued in this Court recall mandate 11,1981, enter judgment February affirming, reversing, Thomp- rather than criminal action. son’s conviction armed We overrule the motion.

I degree first Thompson charged with murder, armed criminal robbery, armed killing robbery action for his in a part January at Cox’s Cleaners St. Louis first him of jury аcquitted 1979. The him of armed degree murder convicted action. robbery and armed criminal to be a “dan- trial court found him to life gerous offender” and sentenced years and ten prison for armed action, for armed prison concurrently. run the sentences to the convic- appeal affirmed robbery. tion and sentence for armed (Mo.1981). Thompson, 610 S.W.2d for armed criminal action The conviction id., reversed, because at the time was decided our cases held that appeal proscription fifth amendment of double imprisonment of de- jeopardy prohibited an posed upon appellate finally court once fendant for both criminal action and armed a case and its mandate issues. This underlying felony when both crimes decides transaction, appellate long ago arose out of the same see held that once an State, the trial 1980) its mandate to transmits (Sours court, II), jurisdiction cert. it divests itself (1981); Swinney, 317 Mo. Gray Realty cause. Co. *3 Sours State, (Mo. banc) (Sours I), 687, 691, 43, (banc 1927). 593 208 This S.W.2d 297 45 S.W. remanded, 962, See, vacated e.g., 446 100 rule. comports general U.S. with the 2935, (1980). 305, 64 Court, S.Ct. L.Ed.2d 820 On Octo 309- Superior v. 49 Cal.2d Riley 5, 1981, ber Court denied 10, 956, (1957); Hagan 958-59 v. 316 P.2d certiоrari, 470, for a writ of Co., 469, 150 Robert 222 Ga. S.E.2d & which the state v. Mis opposed. Thompson Lee, 663, (1966); v. 74 N.M. 665 Woodson souri, 840, 102 148, 454 419, U.S. 70 L.Ed.2d 227, 228, (1964); 420 Raht v. 392 P.2d (1981). 122 cross-petition 485, 498, The state did not 215 Tenn. 387 Railway, Southern Jensen, jeopardy certiorari on the double issue. 781, (1965); Reeploeg v. 787 541, 546, 503 P.2d 81 Wash.2d reasoning underlying The line 91, 839, 94 38 cert. 414 of cases was invalidated Annot., (1973). generally 84 See 1983, 19, January Court’s decision on therefore, (1933). question, A.L.R. 579 - Hunter, -, Missouri v. 103 appellate the extent to which an 673, (1983). March a recalling reacquire jurisdiction by may 10, 1983, our years more than two after has said mandate once issued. This Court nearly mandate issued in this case and one to re judicial power “the possesses and one-half after the be- years judgment Reim purposes,” call a for certain mandate came final when the Court denied Co., 273 B. Lumber ers v. Frank Connet review, the state filed the 348, but it has never (Mo.1954), 349 and, requesting that we recall our mandate power. of that fully scope delineated the Hunter, authority Thomp- affirm son’s conviction for armed criminal action. that a have held Other courts may not be recalled mandate once issued

II exceptions, specific a few absent one of an Finality litigation oсcupies is the result of judgment when the such as proc important place justice fraud, in the criminal fact or of prejudicial mistake of 107, See, Isaac, e.g., Engle ess. v. 456 U.S. in the or error irregularity there is when 126-28, 1558, 1570-71, 71 L.Ed.2d 102 S.Ct. mandate, the man or when issuance of the Bustamonte, (1982); 412 783 Schneckloth judgment reflect the correctly does not date 218, 262,93 2041, 2065,36 L.Ed.2d See, e.g., People the court. rendered J., (1973) (Powell, concurring); 78, Sanders 858, 860, 210 P.2d Stone, Cal.App.2d States, 1, 24-25, Son, 83 S.Ct. v. United 373 U.S. & (1949); v. Whitaker Tyson 79-80 (1963) (Harlan, L.Ed.2d (Me.1980); Reeploeg, A.2d J., State, dissenting); Gailes 102-03. at See at 503 P.2d Wash.2d (Mo.1970). point litigation At some Error & Appeal § 5B C.J.S. generally equal context, precept applies must cease. This (1958). In the criminal at 650-51 force to both and the individual society of the remittitur motion for recall defendant, at Engle, see 456 U.S. mis a mere to correct proper remedy 1571; Sanders, at law, one exits.... though even take of J., 24-25, (Harlan, at 1082 dissent in obtaining for both have an interest ing), jurisdic- has a court Ordinarily, when ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍just pro resolution of criminal a final which is not judgment to render a tion ceedings. fraud, prejudi- or imposition result of facts, which a remittitur ex cial mistakes finds principle may not issued thereon duly has been im- jurisdictional limitation pression quashed stability recalled or courts of that which is necessary to correct mere errors procedure. law or justice.” administration Kosten P.2d Flemming, 17 Wash.2d Stone, 93 Cal.App.2d at 210 P.2d at A criminal defendant 79-80. should with the concern not be burdened judgment Whenever ap of an are long proceedings against him pellate upon court impinges the federal con closed, the substantive law change accused, stitutional rights granted the court that composition of the mistake cannot be said to be a “mere might again him his render him liberty of law or procedure.” Id. at [error] P.2d at 80. amenable at the instance Consequently, imprisonment our courts have properly recognized that a may mandate the state.

recalled in remedy order to a deprivation of fall within This case does not the federal rights constitutional of a crimi exceptions general to the rule that a man- nal defendant. example, a For. motion to *4 may date once not be The issued recalled. may recall the mandate be employed to mandate in this case therefore cannot and seek an appellate reconsideratiоn of court’s should not be recalled. affirmance of a conviction when a criminal defendant alleges ineffective assistance of The relies on McReynolds state counsel on appeal, Rone, v. State 603 Nevels, but cases are inapposite. those 575, (Mo. 1980); S.W.2d 578 banc Hemphill Both recall af involved the of mandates State, v. 200, 566 (Mo. S.W.2d 208 banc of firming convictions obtained in violation 1978), or when a defendant has been de Missouri, 357, Duren v. 439 U.S. prived of appellate altogether, counsel see 664, (1979), 58 L.Ed.2d 579 and were decided Schaffer, v. 698, State 383 (Mo. 700 Missouri, Supreme Court Lee v. 1964). Such a may also be employed 461, 710, 439 U.S. 99 58 L.Ed.2d 736 S.Ct. when the decision appellate of a lower (1979), expressly holding made the in Duren directly conflicts with a decision of the retroactive date of the to the decision United Supreme States Court upholding the Louisiana, 522, rights Taylor 419 v. U.S. 95 accused. See State v. S.Ct. McRey nolds, 581 692, (Mo.App.1979); (1975). 465 42 Whether a con Nevels, v. 581 S.W.2d 138 (Mo.App.1979). struction of the United States Constitution retroactively is to be applied prospective case, The is not ly depends Supreme upon the Court’s view one which rights of the defendant of the faсts of each par and circumstances Instead, have been abridged. original our Johnson, case, ticular see United States decision was in favor of the liberty 537, 2579, 457 U.S. 102 73 L.Ed.2d 202 S.Ct. accused with respect conviction for (1982), question no is here in such armed criminal action. That decision was volved. to say It suffices that neither final.1 To reopen the proceedings now attempt McReynolds nor Nevels involved an would subvert the policies principle by the his designed deprive state to defendant of to further. require “To courts to liberty duly granted consider after it had once bеen and reconsider cases at will litigants deprive would him. er, 622, 1731, 618, 1733, There 381 85 14 is no S.Ct. decision of this Court was final. (1965). The Court ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍has Su L.Ed.2d 601 n. 5 this case the judgment defined a final in this context as preme one petition for Court denied rendered, in which a conviction was the availa- Missouri, 840, Thompson certiorari, 454 U.S. exhausted, bility appeal and the time for 148, 102 70 122 L.Ed.2d petition elapsed petition for certiorari or a state to seek certiorari made no effort finally denied. See United States v. certiorari jeopardy double as it had done in most issue Johnson, 8, 537, 2579, 457 U.S. n. 102 542 question, Mis posing see other same cases 8, (1982); Tehan v. n. 73 L.Ed.2d 202 — Hunter, —, souri Shott, United States exrel. n. n. 74 L.Ed.2d (1966); Linkletter v. Walk- (U.S.Sup.Ct. up days. an extension of to 30

The motion to recall the mandate is over- 20.1). ruled. petition Rule No filed state. DONNELLY, JJ., HIGGINS and concur. opportunity when The had another state BLACKMAR, J., sep- concurs in result in defendant-appellant petition filed his opinion arate filed. 19.5 of the By for certiorari. Rule petition a cross of the United States RENDLEN, C.J., BILLINGS, J., dis- of the days filed within 30 could have been separate sent in opinions filed. even petition, filing of the defendant’s GUNN, J., sepa- dissents concurs have petition would though an initial BILLINGS, J. dissenting opinion rate Filing cross would petition of time. out record BLACKMAR, most of the Judge, concurring very simple in result. since printed required documents are I would dispute the Chief Justice’s petition. appendices to the defendant’s assertion that States, our remanding United several of indicates that The Counselman remand Alber petition cases reconsideration or a cross initial either an States, naz v. United granted. have been undoubtedly clear (1981), gave instead, state, in the final acquiesced (Sours indication that our in Sours I through denial disposition of State, 1980), may state рetition. defendant’s vacated, *5 U.S. be more that Court would felt the 820 did state (1980)), correctly L.Ed.2d if petition the defendant’s willing grant the feder jeopardy Perhaps law double the review. state also to seek the were Constitution, al and the of cer- opening up that denial risk of any the state felt that (State Sours, 603 tiorari II v. bene- possible the the case was not worth denied, (Mo. 1980), S.W.2d 592 banc cert. which fits, sentence in view of the severe 1181, 953, motive, 67 118 L.Ed.2d the how- Whatever was affirmed. (1981)), was at the ever, attributable to circumstances not so clear signals the were case, case, indicating than peculiar to that rather acted on initially time this Court the state’s correctly that this Court had resolved move was I that the and believe for remand.1 issue which was occasion review. seeking further disagree I with assertion Nor would that agree I For reasons stated that there no reasonable expectation was should the mandate motion to recall rehearing in the decision on State to discuss necessary is not overruled. It 1981), (Mo. banc Haggard, possibilities. other 1297, 930, 102 cert. 455 U.S. be sustained on L.Ed.2d Justice, dissenting. RENDLEN, Chief further review. following, respectfully I For the reаsons case, however, In the dissent. 1981, 9, rehearing February was denied on 13th, 1979, Thompson at Otis January before the remand Missouri Counsel Dickerson, an em- 1690, Donald 990, gunpoint robbed man, 450 shop. He was tried 23, cleaning 1981), ployee had or of a (March been L.Ed.2d robbery and degree convicted of first filed dered. The state could have a July 13,1979, on action following the armed criminal days within 60 for certiorari as a was sentenced year of that secured in October and could have rehearing, denial flag as the did not mootness II, in Sours Certiorari was denied 118, January persuades This me on fоr the denial. 67 L.Ed.2d occasion 26, 1981, was in this case assumed burden should have that the state January but before seeking handed down on review. further rehearing. the denial of dangerous precluding a second for the same offender to life conviction imprisonment ten years for armed criminal (as by offense forbidden Missouri’s common Robbery action.1 and armed criminal ac- law the Fifth Amendment to the Constitution, tion were then and at all since applicable times have United States crimes, been discrete statutory Amendment) each accom- the Fourteenth states via рanied separate punishment provision. had not violated when the defendant been Thompson ordered for separate fell sentences for two received two prescribed within the statutory range. separate It crimes. 558 at 651. In the knew, should be emphasized Thompson bar, Thompson case at virtue Otis convicted and sentenced for both crimes in that neither the Missouri Con Treadway, a single When Thompson trial. was sen- stitution nor federal Constitution invali (1979) tenced the definitive statement on dated his conviction sentences Double vogue regarding Jeopаrdy Double At time of his con Jeopardy grounds. found in could not sentencing, decision State v. viction and Treadway, 558 S.W.2d 646 1977). said that had reasona Faced in expectation being a constitutional ble re constitutionally challenge of Double Jeopardy, this court conviction lieved of his or sentence arm approved Thereafter, convictions and ed punishments criminal action. this court single trial for the simultaneously (Jan. 1980) engraft commit- Sours I attempted (1) ted (2) crimes of robbery and armed a new interpretation and untenable criminal action: “[M]ultiple convictions are Jeopardy provision onto the federal permissible if the defendant has in law Jeopardy and Constitution’s Double Clause. in fact separate committed However, crimes.” Id. at temporary breach was citing Toombs, 826 Mo. promptly repaired April when (1930). Further, without the Supreme Court of the United States question, States, intended defend- decided Whalen United ant Treadway’s offenses to treated as 715 (April 63 L.Ed.2d separate crimes and that 1980). so Whalen stat Thus, since found.2 if the Treadway Legis- ed: “The Double Clause *6 lature prescribed and punish- convictions courts vеry precludes least federal from ments crimes, for both then impo- a court’s imposing consecutive sentences unless au sition of such convictions and Congress sentences thorized to do so.” Id. at would be valid. In its holding, this (Emphasis added.) court at Driv 1436. swept Treadway’s aside Donald argument point ing home its the Court continued: that such convictions power, including power violated Missouri’s “the the legislative prohibitions Constitutional against placing prescribe define criminal offenses and a person again in jeopardy for an offense the punishments imposed be ... resides being after once acquitted wholly Congress.” for that offense. with Id. The im I, S.W.2d at citing port although Mo. Const. Art. was of Whalen that Dou 19. The in Treadway § prohibited added that ble Clause courts from Jeopardy prohibition against punishment Double for the same Jeopardy assessing double acquitted charge 1. was armed criminal [the on a of hav- action statute] Cox, ing propri- murdered defining felony John a brother of the underlying ap- be statute cleaning shop etor of the where Donald Dicker- plied prosecution arising to a defendant in a son was robbed. single out of a transаction.” Id. at 216. This Sours, admission reiterated in State was cases, Although beginning a host of our later (Mo. 1980) (Sours II) banc (Mo. with Sours State banc again on issued motion for 1980) (Sows I) (see below) discussion contra- Haggard, rehearing in State v. Treadway, dicted in Sours I con- 1981). connection, (Mo. banc it Legislature ceded that the intended convic- should be noted that the author above possible tions for both crimes were and that majority opinion opinions three authored the punishment permissible. both “The for was the case at bar. Assembly clearly General that both intended mine “Congress аcts when not so whether intended consecu- Legisla- authorized ture, prohibit Legis- the Clause did not imposed sentences to the viola- tive be for statutorily lature from more prescribing and, if conspiracy tion of those two statutes than one sentence for the same acts and so, vi- punishment cumulative whether such establishing separate Therefore, if crimes. clause of the olates the Double Legislature pun- authorized such double Fifth of the United States Amendment ishment, a court the Dou- would not violate at 1140. Id. at Constitution.” out by meting ble Jeopardy Clause that it was confront- pointed The Court out punishment prescribed. separate ed with offenses separate “distinct provisions contained in penalty

At the time very Court de- cided it considering Whalen was also certio- of the act.” Id. at subchapters Sours, rari review 593 S.W.2d went State at 1141. The Court further (Mo. 1980) (hereafter I). banc Sours cited Brown v. Ohio: May as any lingering question im- consecutive sentences are “[w]here controlling to whether Whalen was law trial, at the role of posed single dispelled was when the Court va- limited to guarantee the constitutional cated and remanded Sоurs I “for further assuring that the court does not exceed ” consideration in of Whalen .... imposing legislative its authorization Sours, Missouri v. the same of- multiple punishments However, 64 L.Ed.2d 820 S.Ct., U.S., at 165 fense.” [97 August Sours, of 1980 this court ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍in Thus, pun- of what question 2225]. 1980) (hereafter 603 S.W.2d 592 constitutionally permissible ishments are II), teachings refused the of Whalen of what not different from and again declared that Scott Sours’ convic- Legislative Branch in- tion for both and armed criminal Congress Where imposed. tended action constituted a violation this court’s intended, here, it multi- did notion of the United States Constitution’s sen- imposition of such ple punishments, Jeopardy provision. Certiorari was not violate the Constitution. tences does for, again applied but before the United Albernaz, at 1145. 344, 101 U.S. at action, States Court could take this, can no doubt There peniten Scott Sours was released from the it manifest language, clearest made Thus, tiary. January 26,1981, certiorari of Mis permissible although should be noted sepa souri to authorize the conviction release, that because of Sours’ two of imposition separate rate crimes and the reporting judges would have dismissed the single in a trial. But somehow punishments petition “as moot.” 449 U.S. not be dis this court could majority of 1981). (January *7 striking down its intention of suaded from However, in two less than months the Unit in Mis convictions armed criminal action in Alb Supreme ed States Court’s decision Haggard, 619 souri. In U.S., 450 ernaz v. in the 14, 1981), this court July (March 9, 1981), removed re rehearing, for issued on motion basis for doubt that this court had expressed Sours proposition affirmed the erroneously the interpreting indeed been of these enactment namely, by Fifth The in Al- Amendment. defendants II — in statutes, Missouri two the conspiracy bernaz had been convicted of punish appellant, tended twice conspiracy import marijuana and [count I] that such multi erroneously insisted again II]; each marijuana to distribute [count offense aris punishments for same ple separate provi was in violation of a count violated the transaction ing out of the same de sion Code. The of United States Jeopar Double view of majority’s mistaken sentences fendants had received consecutive Thus, at 51. 619 S.W.2d count, dy. Haggard, Su each and United States notwithstanding the United States granted certiorari deter- preme Court pronouncements statutes, Albernaz, statutory Court’s “a court’s tаsk con- this court Haggard’s reversed conviction for an prosecutor struction is at end and the armed criminal action. This court’s mistak- seek may jury may and trial en concerning view the meaning of Double punishment cumulative under such Jeopardy as repeated in Haggard again at-; single statutes in a trial.” Id. stripped away when Haggard was vacated added.) at (Emphasis remanded on February The case at bar does not involve retro- further consideration in of Missouri v. spective application interpretations of new Hunter, -, is here Constitutional law. Nor there In meantime, finality. United States Supreme Court, acutely Hunter, by rulings presaged aware of Missouri Court’s refusal Whalen, I, decision in the reversal of Sours yield federal mandates, granted certio- Albernaz, and the decision in came as no rari from one of the many cases in our Hence, surprise. Thompson Otis was valid- Court Appeals for which armed criminal sentenced; ly convicted and under ex- action convictions had been vacated because law, isting only in first four months of Sours. Through Hunter, its decision in (between Whalen) of 1980 I and Sours on January 19, 1983, decided the Supreme could his еxpected sentence impossible Court made it for this court to to have possibility been altered. The continue any pretense that its mistaken no- Whalen, dispelled put to rest tion of Double Jeopardy was valid. Chas- summer of 1980 when I was reversed Sours tising court, this the Chief Justice speaking fol- and remanded. the months that stated that our rul- Haggard lowed, the United States ing “manifests a misreading of our cases on Whalen repeatedly ruling reinforced its the meaning of the Double Jeopardy Clause and its reversal of Sours I. Hunter, Fifth Amendment.” this at bar somehow treats at-, 103 S.Ct. at 677. Further is, something differеnt from what emphasizing point, this the Court stated: ” assuming a “change that Hunter effected respect “with to cumulative im- sentences in the law that reaches back to harm de- posed in a single trial the Jeopardy Double case; fendant Thompson. Such not the Clause does no more prevent than sen- instead, meaning tencing court from prescribing greater pun- meaning under Hunter identical to the ishment than legislature intended.” prevailed (both in federal and in state (Emphasis at-, added.) Id. at courts) before, at the time 678. Observing that the Missouri Supreme It was trial and conviction. Court had construed the two statutes at attempted our court I that under Sours crime, issue as defining the same and that change meaning of the Fifth Amend- the Missouri Supreme Court had recognized Constitution, ment the United States the Legislature intended cumulative Clause, statutes, Supremacy violations court’s brief flirtation with that erroneous accepted the Court the Missouri court’s con- interpretation should have immediate- struction the Missouri statutes. Id. II -, ly during corrected court in Sours 103 S.Ct. at citing O’Brien v. Skinner, However, the summer of 1980. II *8 court to (1974). But, again properly apply L.Ed.2d 702 this refused the Court went on to stаte “we federal Doctrine. Had are not bound by the Mis- law, souri legal applied Court’s this court there properly conclusion that these Jeop- two statutes have no of violate the Double would reversal Clause, ardy reject and we legal its conclu- armed action conviction in January criminal Therefore, sion.” Id. In summary, the of applying Court stated Hunter’s that where a Legislature does specifically principles autho- to Otis not consti- rizes punishment cumulative two retrospective application tute a a law, “change” weapon оr not dangerous deadly Constitutional for there could Amendment, was no “change.” The Fifth provides Section more clear. 571.015 interpreted as by the United States Su- “any person any felony who commits ... Court, preme was the same at the time with, use, assistance, by, through or or Thompson’s conviction as it is now: Double is dangerous deadly weapon aid of a or also Jeopardy did not prohibit and does not guilty of crime of armed criminal ac- imposition multiple sentences for the added.) times (Emphasis tion.” Three same acts because the has so declares, statutе in its several sections provided by statute. punishment to this imposed pursuant “[t]he any pun- to Furthermore, subsection shall in addition is a question this not to be by ishment law for the crime com- provided swept “finality.” under the shibbolith of use, assist- argument by, through mitted with or applica- could have only tion change deadly weap- if there has been a ance or aid of a or dangerous interpretation constitutional and a new doc- 571.015, on.” 1978. (Empha- Section RSMo When, trine announced Court. added.) majority a sis case; is Such instead we have a to expressed this court somehow doubt аs situation in briefly which this court was legislative intent to for both punish mistaken meaning as of the Constitu- crimes, Ruddy, rel. Westfall v. State ex tion and now recognize refuses to or reme- 1981), the General dy that mistake. reacted terms un- Assembly immediately misinterpretation. susceptible Section Finally, question I address the 571.017, provides: Cum.Supp.1982 RSMo equities pres- involved. This defendant provision contained in other “Nothing sentence; ently incarcerated under his life law, subsection of except provided justifiable legal there no or constitu- 571.105, prevent imposition section shall tional basis for his armеd reversing criminal criminal action sentences for both armed action conviction. with, by, or and the crime committed setting In this admits that majority use, assistance, a or aid of through possesses judicial power weapon.” deadly instrument or dangerous recall the Majority mandate this case. however, the Gen- years, For the three past Opinion citing v. Frank B. Reimers protect Assembly’s persistent eral efforts Co., Connet Lumber persistently been as Missouri citizens have (Mo.1954). The final one decisions, which frustrated this court’s judicial policy. correct its Should this court growth a of сases in have caused dendritic petition mistake after the time of certiorari the roots of which appeals, our court of the United Court has States Legisla- of our the intentions choked elapsed or such is denied? I submit that Missouri v. appears ture. Just when it strange context created —, Hunter, — decisions, court’s on an judgment, a based this court’s (1983), has ended interpretation erroneous constitutional opposition, continued occurred and affected more than repeatedly guise of under the throw a new obstacle cases, one should be hundred identifiable path. legislation’s into the Such “finality” reviewed. and the re unnecessary, obstruction is Since when the armed criminal ac- slight crudescence of Sours —however —is enacted, tion statute was 1976 Mo.Laws judicial contrary policy. to sound Assembly persistently the General has convicted and lawfully Defendant was impos- crime by endeavored to deter violent committing felony with a sentenced for ing more severe on those con- justifiable no deadly weapon, and there was committing dangerous victed of crimes with basis for this court’s or constitutional weapons. legal Assem- deadly The General action convic- his bly’s reversal of armed punish- intent additional incarcerated!, serving felony presently with a tion. He is ment commission *9 affirm men recall the mandate and degree robbery; the life sentence first equitable do not considerations therefore convic- defendant’s armed criminal action against affirming companion militate tion. conviction of Final- armed criminal action. opinion correctly observes principal ly, finally affirmance would effectu- permit crimi- society individual both ation of the effоrt General to Assembly’s obtaining nal have an interest defendant deter violent crime by severely pun- more just pro- of criminal final and resolution ishing committing those convicted of felo- agree, suggest I the scales ceedings. dangerous weapons. nies with or It deadly justice counter-balanced in should not be this role oppose court’s or support If favor of either the defendant. society legislation, it is our role enforce we power have the to recall mandates legislation constitutionally permissi- such if defendant, then balance scales for the In refusing ble. recall power we have the same should court, legislatively I mandated submit society’s in- mandates balance them erred, has for it should not set itself as just dic- terests. A resolution this case superior to the people’s representa- elected tates The final reso- recall mandate. establishing

tives in public policy. proceedings lution these criminal are stated, For reasons I recall light years away. probably mandate issued in defendant’s case Febru- 11,1981, ary judgment affirming and enter

defendant’s conviction for armed criminal

action.

BILLINGS, Judge, dissenting. past

I dissent. The years 15 or 20 post-conviction proceedings, particularly ex rel. BANK AND STATE EAGLE corpus, federal habeas me convinced COMPANY, by Larry RO TRUST there is simply no such thing as Relator, DERMAN, President, the criminal law arena. I the final- suggest ity of Court’s affirmance of defendant’s life sentence shortly will CORCORAN, Judge, James Honorable S. and, tested our Rule ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍27.26 if relief is Missouri, 22nd Circuit Judicial not forthcoming, judgment the final of Mis- Respondent. highest re-opened souri’s court will be No. 64842. re-examined by our federal brethren Missouri, of habeas way corpus. En Banc. I, and the cases spawned, misinterpreted exist misapplied 22, 1983. Nov. substantive, ing, federal constitutional law. Following cases, line this Court in

1981 reversed defendant’s armed criminal

action conviction. Because the reversal was on squarely

bottomed federal constitutional Hunter, — U.S. —,

law and Missouri v. de

clared Sours I and its to have progeny from misreading

resulted our cases “[A] meaning ” (103 Clause of the Fifth .... Amendment 677), Court should not to bite prior

hesitate the bullet of marks-