criticizing majority for reaching the merits of a double jeopardy claim without first determining whether the petitioner had "deliberately by-passed orderly state procedures"
How later courts described this case
- criticizing majority for reaching the merits of a double jeopardy claim without first determining whether the petitioner had "deliberately by-passed orderly state procedures"
Written by the judges who cited it.
The opinion
DONNELLY, Judge,
dissenting.
In Benton v. Maryland, 395 U.S. 784 , 89 S.Ct. 2056 , 23 L.Ed.2d 707 (1969), the United States Supreme Court overruled Palko v. Connecticut, 302 U.S. 319 , 58 S.Ct. 149 , 82 L.Ed. 288 (1937) and applied the Double Jeopardy Clause of the United States Constitution to the states.
*607 In Soars v. State, 593 S.W.2d 208 (Mo. banc 1980), a majority of this Court ordered a conviction under Missouri’s armed criminal action statute set aside because it felt compelled to do so by general declarations of law made in Harris v. Oklahoma, 433 U.S. 682 , 97 S.Ct. 2912 , 53 L.Ed.2d 1054 (1977).
On May 27, 1980, in Missouri v. Sours, - U.S.-, 100 S.Ct. 2935 , 64 L.Ed.2d 820 , the United States Supreme Court vacated the judgment of this Court in Sours, and remanded the case to this Court “for further consideration in light of Whalen v. United States, 445 U.S. 684 , 100 S.Ct. 1432 , 63 L.Ed.2d 715 (1980).”
Of course, the mandate of May 27, 1980, is the law of the ease and is binding on this Court.
In North Carolina v. Pearce, 395 U.S. 711, 717 , 89 S.Ct. 2072, 2076 , 23 L.Ed.2d 656 (1969), the United States Supreme Court stated “that the Fifth Amendment 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. * * * >t
I agree with the conclusion of the principal opinion that the Missouri General Assembly intended that two separate punishments be imposed for first degree robbery and armed criminal action. I do not agree that the holdings in Harris and Vitale, both second prosecution cases, are pertinent to this multiple punishments case. See State v. Neal, 514 S.W.2d 544, 550, 551 (Mo. banc 1974) (Donnelly, C. J., concurring). See also Rules 23.05 and 24.07.
The essential question is: should this Court apply the holdings of Harris and Vi-tale, both second prosecution cases, in this multiple punishments case when we know that the United States Supreme Court declined the opportunity to apply the Harris holding in Simpson v. United States, 435 U.S. 6, 12 , 98 S.Ct. 909, 913 , 55 L.Ed.2d 70 (1978), also a multiple punishments case? I think not. In Oregon v. Hass, 420 U.S. 714, 719 , 95 S.Ct. 1215, 1219 , 43 L.Ed.2d 570 (1975), the Court stated that “a State may not impose * * * greater restrictions as a matter of federal constitutional law when this Court specifically refrains from imposing them.” See also North Carolina v. Butler, 441 U.S. 369, 376 , 99 S.Ct. 1755, 1759 , 60 L.Ed.2d 286 (1979).
In my view, the logic of Whalen is that the multiple punishments proscription of Pearce is satisfied if the multiple punishments in this case were intended and authorized by the General Assembly-to hold otherwise is to make the mandate of May 27, 1980, inscrutable.
I respectfully dissent.