*1 369 term, specifically if found to that effect. “that the is
The court found: defendant Missouri, Respondent, of STATE of previously one who has been convicted v. times, and not two felonies at different Ray THOMPSON, Appellant. A. the instant crime.” That does related to contemplates The that not suffice. statute No. 63325. according the convictions be found to indict- Missouri, Supreme Court of ment, proof that the shall conform with the En Banc. charge, findings and that the describe the proof. offenses which constitute the 9, March 1982. We conclude that the extended term for
persistent imposed offender was without
the of the determination the existence of punishment
basis for that enhancement of
prerequisite judicial to that exercise of au-
thority. 558.021.1(3). The extended § validly,
terms on Count I and Count III rest
otherwise, on the that the determination dangerous
defendant was a offender. disturbed, judgments
Those will not be oth-
er reimposition than for of sentence for the given.
other reasons point
The final contends that the robbery
conviction for the Count I second
degree case, by deadly this committed [in
weapon] and the for the II conviction Count
armed criminal action violates constitution principle.
al It has been authorita decided
tively that convictions for both armed crim
inal underlying felony action and the in
fringes prohibition against jeop the double State, (Mo. v.
ardy. Sours 603 592 S.W.2d 1980).
banc
The conviction for armed criminal action
under Count II is reversed and the defend- discharged judgment.
ant is from that The robbery degree
convictions for second under I kidnapping
Count and for under Count III affirmed,
are but the sentences are set
aside, and the causes are remanded to the reimposition
trial court for of sentences. All concur. Sterling, Acting Peter N. Public Defend-
er, Gardner, Defender, Gary L. Asst. Public City, appellant. Kansas for Ashcroft, Gen., Atty. City, John Jefferson Starke, Gen., Catheryn B. Kan- Atty. Asst. Garrett, City, Atty. sas W. Asst. Steven Gen., respondent. City, Jefferson for 370 *2 DONNELLY, J., SEILER,
ON TRANSFER FROM THE COURT C. and MOR- OF APPEALS GAN, BARDGETT, and HIGGINS JJ. con- cur. WELLIVER, Judge. appellant-defendant Thompson ap- The RENDLEN, J. in part concurs and dis-
pealed Appeals, to the Missouri Court of part separate opinion sents in in filed. District, from convictions and con- Western years secutive sentences of fifteen for rob- RENDLEN, Judge, concurring part in bery degree (Count I), second seventy-five dissenting part. and in (Count years II), for armed criminal action The crimes degree robbery of second and years (Count kidnapping and fifteen for action,1 armed criminal which for the de- III). appeals The court of reversed the convicted, charged fendant was and oc- conviction and sentence on the crimi- armed 24, January curred on 1979. His second (the sentence) longer nal action and af- degree conviction, 569.030, robbery RSMo § firmed the other the sentences. On same 1978, year imprison- resulted in a 15 term of case, opinion date of the in this the court of ment, while under the armed criminal ac- opinion appeals after transferred to this Kane, conviction, 571.015, 1978, tion State v. 63324, the of Court case No. RSMo he § involving question year also the whether the received a 75 sentence. armed criminal action sentence or the sen- I respectfully dissent in part and concur underlying
tence on the should felony be part in for expressed the reasons in my background, vacated. In this case this also separate opinion Kane, in State v. 629 was after opinion transferred because it S.W.2d 370 (Mo.App.), decided concurrently general impor- involved the same issue of herewith. I would affirm. tance. Rule 83.02. appeals
The court of in the instant case they
reached the correct result when re-
versed the criminal armed action sentence. Kane, v.
State (Mo.banc 629 372 S.W.2d
1982), heard and contemporaneously decided
herewith. original opinion ap-
The of the court of peals approved is subject opinion. to this A Missouri, Respondent, STATE of copy original appeals opinion of the court of is attached hereto published and is ordered v. opinion as the appeals of the court of to be Anthony KANE, Appellant. J. reporter by opinion followed in the this on appeals. transfer from the court of The No. WD31611. judgment final appeal on will stand that: Appeals, Missouri Court of The conviction for armed criminal ac- Western District. tion under Count II is reversed and the discharged judg- defendant is from that 6, Aug. 1981. robbery ment. The convictions for degree second under Count I and for kid- affirmed,
napping under Count III are aside,
but the sentences are set and the are
causes remanded to the trial court for
reimposition of sentences.1
Thompson,
(Mo.App.
imprisonment
(15 years
1. State v.