Sours v. State

RENDLEN, Judge,

dissenting.

INTRODUCTION

I respectfully dissent. The majority’s mechanical treatment of Blockburger v. United States, 284 U.S. 299 , 52 S.Ct. 180 , 76 L.Ed. 306 (1932), “same offense” test as substantive double jeopardy doctrine is in my view a misapplication of that test and an exaltation of form over substance. The principal opinion decides the double jeopardy clause forbids conviction and punishment in a single prosecution for armed criminal action and robbery under Blockburger . The majority does so against a tapestry of dicta woven largely from successive prosecution cases and by skillful conversion of the canon for “statutory construction” prescribed by Blockburger , into a rigid doctrine of constitutional right. The Supreme Court’s mandate that on reconsideration we be guided by Whalen v. United States, 445 U.S. 684 , 100 S.Ct. 1432 , 63 L.Ed.2d 715 (1980), neither so requires nor permits. In this regard the present effort is little more than a recasting of our original opinion vacated by the Court.

William Scott Sours was charged with robbery first degree by means of a dangerous and deadly weapon (§ 560.120, RSMo 1969 and § 560.135, RSMo Supp.1975) and *608 armed criminal action (§ 559.225, RSMo Supp.1976) for participating in an armed robbery of a Mr. Quick Store in Jasper County. On October 5, 1977, Sours pled guilty to both charges and on January 5, 1978, was sentenced to five years imprisonment on the robbery conviction and three years imprisonment on the armed criminal action conviction, the sentences to run consecutively. See Sours v. State, 593 S.W.2d 208, 209-210 (Mo. banc 1980) (vacated-U.S. --, 100 S.Ct. 2935 , 64 L.Ed.2d 820 (1980)).

It should be noted at the outset that the majority fails to address the important question of whether Sours’ guilty plea constituted “a break in the chain of events” so as to preclude litigation of the double jeopardy issue in this post-conviction Rule 27.26 proceeding. See Tollett v. Henderson, 411 U.S. 258, 267 , 93 S.Ct. 1602, 1608 , 36 L.Ed.2d 235 (1973); Francis v. Henderson, 425 U.S. 536, 541-542 , 96 S.Ct. 1708, 1711 , 48 L.Ed.2d 149 (1976); Wainwright v. Sykes, 433 U.S. 72, 86-87 , 97 S.Ct. 2497, 2506 , 53 L.Ed.2d 594 (1977). Cf. Jeffers v. United States, 432 U.S. 137, 152 , 97 S.Ct. 2207, 2216 , 53 L.Ed.2d 168 (1977). Recently in Weir v. State, 589 S.W.2d 256 (Mo. banc 1979), this Court questioned the cognizability of a claim of double jeopardy in a Rule 27.26 proceeding following defendant’s failure to raise the objection at the trial level. The majority fails to consider the rule announced by Weir , at 258:

[I]t is now settled by numerous decisions in both the federal and state systems that where there is a deliberate bypass, whether for strategic, tactical, or other reasons, of orderly state procedure, a movant is precluded from raising a constitutional issue on a post conviction motion.

Instead of eagerly seizing the constitutional issue, we should remand for a determination by the sentencing court whether Sours by pleading guilty has deliberately bypassed orderly state procedures 1 and only after a determination that he has not, should we address the far reaching federal constitutional question.

Turning to the constitutional issue, it was the framers’ intent 2 that the Fifth Amendment embody the common law’s double jeopardy protection against a defendant’s reprosecution following conviction or acquittal upon a criminal charge. 3 See Brown v. Ohio, 432 U.S. 161, 165 , 97 S.Ct. 2221, 2225 , 53 L.Ed.2d 187 (1977); United States v. Wilson, 420 U.S. 332, 340-342 , 95 S.Ct. 1013, 1020-1021 , 43 L.Ed.2d 232 (1975). James Madison tendered the original draft of the Fifth Amendment, 4 later amended to its present form, midst concern that a defendant’s right to new trial not be abridged by a conviction erroneously obtained. See Wilson, id. citing I Annals of Congress 753 (1789). At the time of adoption the limited number of common law felonies, e. g., rape, robbery, murder, arson and burglary allowed for ready application and more certain protection for criminal defendants under the double jeopardy clause. Today, given the proliferation of complex statutory crimes, it is recognized that the doctrine’s *609 original scope cannot provide complete and certain answers in many cases. Nevertheless in the constitutional construction process, we are guided by the purposes and policies underlying the constitutional protections afforded by the framers and those who ratified our Bill of Rights.

The fountainhead of that aspect of double jeopardy jurisprudence described as the double punishment doctrine appears to be Ex parte Lange, 85 U.S. (18 Wall.) 163 , 21 L.Ed. 872 (1873). There the sentencing court exceeded the legislative authorization for punishment of a statutory crime. Defendant was convicted of stealing post office property for which the statutes provided as punishment, imprisonment for not more than one year or a fine of $10 to $200. The court however sentenced Lange to one year’s imprisonment and a fine of $200. It was in that context of the trial court having exceeded its statutory authority that the double punishment doctrine had its origins. On review, the Court was concerned with the trial court having exceeded the legislative authorization not the legislature’s constitutional authority to proscribe certain acts as crimes and prescribe punishment therefore. The Court at 176 stated:

We are of opinion that when the prisoner, as in this case, by reason of a valid judgment, had fully suffered one of the alternative punishments to which alone the law subjected him, the power of the court to punish further was gone. That the principle we have discussed then interposed its shield, and forbid that he should be punished again for that offense. (Emphasis added.)

Whalen v. United States, 445 U.S. 684 , 100 S.Ct. 1432 , 63 L.Ed.2d 715 (1980), which guides us here, emphasized that the decision in terms of “double punishment” turns on the legislative intent, stating that “the dis-positive question, therefore, is whether Congress did so provide.” 445 U.S. at 688 , 100 S.Ct. 1432 at 1436 , 63 L.Ed.2d at 722 .

The double punishment doctrine does not constitute a substantive limitation on the legislature’s power to define and punish crimes. See Whalen v. United States, 445 U.S. 695 -696, 100 S.Ct. 1432, 1440 , 63 L.Ed.2d 715, 726 (1980) (concurring opinion of White, J.); 445 U.S. 696 -699, 100 S.Ct. 1432, 1440 , 63 L.Ed.2d 715, 726 (concurring opinion of Blackmun, J.) Westen and Drubel, Towards A General Theory of Double Jeopardy, Sup.Ct.Rev. 81, 112-115 (1978). See also Note “Twice in Jeopardy” 75 Yale L.J. 262 , 311-313 (1965). The Court in Whalen addressed the multiple punishment issue in terms of whether the judicial action had exceeded the legislative authorization. After a discussion of Lange, which as noted above can best be described as a legislative authorization case, the Court held, “[t]he Double Jeopardy Clause at the very least precludes federal courts from imposing consecutive sentences unless authorized by Congress to do so. The Fifth Amendment guarantee against double jeopardy embodies in this respect simply one aspect of the basic principal that within our federal constitutional framework the legislative power, including the power to define criminal offenses and to prescribe the punishments to be imposed upon those found guilty of them, resides wholly with the Congress.” Whalen, 445 U.S. 684, 689 , 100 S.Ct. 1432, 1436 , 63 L.Ed.2d 715, 722 (1980).

The reason for this conclusion seems self apparent. To say that the legislature can punish crime X by life imprisonment but that it cannot define certain acts as crime X 1 punishable by five years to life and crime X2 punishable by three years to life respectively, employs an intellectual artifice providing the criminal defendant little or no additional protection. The majority holds that under the then applicable statutes a defendant could be convicted of armed robbery punishable by five years to life or of armed criminal action and sentenced to three years to life, 5 but could not be convicted of both in the same proceeding and if *610 so convicted the armed criminal action conviction must be vacated. (One might ask, why the armed criminal action conviction?) The principal opinion skirts the Double Jeopardy Clause’s historical purpose to protect the defendant from harassment, reliti-gation, and judicial usurpation of the legislative authority to punish. See Note, Twice in Jeopardy, 75 Yale L.J. 262 , 266-267 (1965). Instead the majority seeks to transform the provision protecting against double punishment into a diluted analogue of the Eighth Amendment without measurably enhancing the defendant’s protections as shown above. 6 Though the Eighth Amendment remains a vital and essential safeguard against excessive punishment by the legislature (see Coker v. Georgia, 433 U.S. 584, 592 , 97 S.Ct. 2861, 2866 , 53 L.Ed.2d 982 (1977); State v. Higgins, 592 S.W.2d 151 (Mo. banc 1979), appeal dismissed 446 U.S. 902 , 100 S.Ct. 1825 , 64 L.Ed.2d 254 (1980), redesigning the Fifth Amendment to serve the purpose filled by the Eighth serves no legitimate function 7 and violates the canons of orderly constitutional construction.

The only apparent justification for the majority’s manipulation of the double pun *611 ishment doctrine is to guard against prose-cutorial and judicial arbitrariness. A constitutional issue of some dimension would be presented if the statutory pattern allowed random and capricious results in which some defendants were convicted of one of the constituent crimes and others convicted of both without any ascertainable justification. Such is not the case under our statutes. The legislature, as recognized by the majority, clearly intended that a person committing a felony with a firearm be convicted and punished for both the underlying felony and armed criminal action. “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 . . . . 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.” Section 559.225, RSMo Supp.1976. The uncertainty as to legislative intent in Whalen is not present here. Further, it was noted there that “[t]he Double Jeopardy Clause at the very least precludes federal courts from imposing consecutive sentences unless authorized by Congress to do so.” Whalen, 445 U.S. 684, 689 , 100 S.Ct. 1432, 1436 , 63 L.Ed.2d 715, 722 (1980). The penalties imposed here were explicitly provided by the legislature. The problem of ambiguity for which the rule of lenity provides an important safeguard against prosecutorial and judicial arbitrariness, simply is not present. In sum, when the legislative intent that an act be punished as two crimes is clear, the potential for arbitrariness by prosecutors and judges is de minimus. As a result, no issue of constitutional dimension arises under the Fifth Amendment by the operation of our Missouri armed criminal action statute.

An examination of earlier United States Supreme Court opinions and recent summary actions by that Court points up the validity of our Missouri armed criminal action scheme under which a person who commits a felony with a dangerous and deadly weapon may be found guilty of two offenses, armed criminal action and the underlying felony. In Jeffers v. United States, 432 U.S. 137, 147-150 , 97 S.Ct. 2207, 2214-15 , 53 L.Ed.2d 168 (1977), the Court assumed ar-guendo, that 18 U.S.C. 846 (conspiracy to distribute heroin) was a lesser included offense of 18 U.S.C. 848 (conducting an enterprise to distribute heroin), and held that a defendant convicted of 846 in a prior proceeding had no double jeopardy claim in respect to a later 848 prosecution because the defendant had earlier successfully moved to sever the charges. A fortiori, it may be said that Jeffers, who was tried and convicted in two proceedings for two offenses, one of which the Court assumed to be a lesser included offense, could have been tried for both in a single proceeding and so it is with Sours.

The majority’s reliance on Harris v. Oklahoma, 433 U.S. 682 , 97 S.Ct. 2912 , 53 L.Ed.2d 1054 (1977) and Brown v. Ohio, 432 U.S. 161 , 97 S.Ct. 2221 , 53 L.Ed.2d 187 (1977), is misplaced. First, Harris and Brown were successive prosecution cases involving the serious risks of vexation and harassment to criminal defendants attendant in multiple prosecutions. Further, the precise issue presented here was specifically reserved by the Court in Simpson v. United States, 435 U.S. 6, 11-12 , 98 S.Ct. 909, 912-913 , 55 L.Ed.2d 70 (1978), decided some eight months following Harris , which teaches that Harris was not, as asserted by the majority, dispositive of the issue here. I might add that the mandate of the Court in Sours does not direct us to decide this case “in the light of Harris v. Oklahoma.” Harris merely held that a defendant’s conviction of felony murder based on a killing in the course of an armed robbery barred a subsequent prosecution against that same defendant for robbery. Harris v. Oklahoma, 433 U.S. 682 , 97 S.Ct. 2912 , 53 L.Ed.2d 1054 (1977). Brown decided only that once a defendant was convicted of misdemeanor joyriding, the State was barred by double jeopardy from convicting the defendant of the greater included offense of felony auto theft in a subsequent prosecution. “[T]he *612 Fifth Amendment forbids successive prosecution and cumulative punishment for a greater and lesser included offense,” (Emphasis added), Brown v. Ohio, 432 U.S. 161 at 169 , 97 S.Ct. at 2227 (1977). Indeed the Court in Brown reiterated 432 U.S. at 165, 97 S.Ct. at 2225 the freedom of the legislature to proscribe criminal conduct and prescribe punishment.

[T]he 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, 2225 .

Not only does the majority disregard the Court’s consistent concern in decisions from Lange to Whalen with the scope of legislative authorization as to double punishment claims, it also fails to recognize that the defendant’s interest in finality, the core value furthered by the Double Jeopardy Clause, is not implicated in unitary prosecution cases. The prime consideration in this unitary prosecution case is the legislative objective of deterring violent offenders by increasing penalties for felonies committed with a weapon. 8 The principal opinion effectively thwarts that objective.

The majority fails to discuss the recent action of the Court on a nearly identical issue dismissing an appeal for want of a substantial federal question. The Court dismissed the appeal from a Michigan Supreme Court decision holding that consecutive punishment does not violate the federal constitution’s Fifth Amendment. Wayne County Prosecutor v. Recorder’s Court Judge and People v. Brintley, 406 Mich. 374 , 280 N.W.2d 793 (Mich.1979) appeal dismissed sub nom. Brintley v. Michigan, 444 U.S. 948 , 100 S.Ct. 418 , 62 L.Ed.2d 317 (1979). There, the Michigan Supreme Court addressed the constitutionality of convictions under a Michigan statute (similar to the Missouri armed criminal action statute) providing that a felony committed by a person with a firearm constituted an additional offense, for which one convicted was to be punished consecutively to the sentence imposed on the underlying felony. Defendant contended his convictions violated rights protected by the Fifth Amendment. See MCLA 750.227b(b); 9 Id. at 794. The Michigan Court, in a persuasive and comprehensive opinion dealing with the precise question here presented, held that by enacting the felony-firearm statute the legislature created a separate crime distinct from the underlying felony and intended that consecutive punishments be imposed. *613 Brintley, 280 N.W.2d 793 at 795-796 . In one of the cases' involved in that consolidated appeal, People v. Brintley, the court firmly concluded that conviction of both felony firearm and armed robbery offenses (described as the “same offense” under the majority opinion here) was not violative of the federal constitution’s protection against double jeopardy. Id. at 799-800. Of prime importance here, the United States Supreme Court dismissed the appeal from that judgment “for want of substantial federal question.” 444 U.S. 948 , 100 S.Ct. 418 , 62 L.Ed.2d 317 . The Court’s refusal to disturb the conclusion of the Michigan Supreme Court that conviction of both felony-firearm and armed robbery in a single proceeding did not violate the Fifth Amendment’s prescription has precedential value as a disposition on the merits. See Hicks v. Miranda, 422 U.S. 332, 344-345 , 95 S.Ct. 2281, 2289 , 45 L.Ed.2d 223 (1975). We are bound to follow that summary decision under the command of the Supremacy Clause as to all federal questions. Art. VI, § 2, United States Constitution. As recently explained by the United States Supreme Court, “[sjummary affirmances and dismissals for want of a substantial federal question without doubt reject the specific challenges presented in the statement of jurisdiction and do leave undisturbed the judgment appealed from. They do prevent lower courts from coming to opposite conclusions on the precise issues presented and necessarily decided by those actions.’ Mandel v. Bradley, 432 U.S. 173 at 176 , 97 S.Ct. 2238 at 2240 (1977). Here the majority has reached a decision diametrically opposed to the conclusion reached in Brintley and seems unconcerned that the appeal was dismissed by the Supreme Court for want of a substantial federal question. In the jurisdictional statement to the appeal filed by Brintley, a claim was made that conviction of both felony-firearm and armed robbery violated the double jeopardy doctrine. 10 The Supreme Court necessarily rejected that claim when it dismissed the appeal. Yet the majority ignores or overlooks Brintley and decides the same issue on federal constitutional grounds. While such action is defensible in the context of adjudication of state constitutional provisions, it does not square with the command of the Supremacy Clause and the role of state courts in the federal system when federal questions are presented.

Neither do subsequent doctrinal developments justify the majority’s disregard of the Court’s summary action in Brintley. As previously noted in Whalen, the Court’s most recent pronouncement, the constitutional issue was discussed in terms of whether the punishment imposed exceeds the legislative authorization. Having determined Congress did not intend consecutive punishments by enacting D.C.Code 23— 112, the Court stated, “Congress is clearly *614 free to fashion exceptions to the rule it chose to enact in § 23-112.” Whalen, 445 U.S. 684, 695 , 100 S.Ct. 1432, 1439 , 63 L.Ed.2d 715, 725 (1980). We might add, if the Congress has such latitude, why not-the Missouri General Assembly?

I conclude the majority opinion confers upon courts a role neither contemplated by those who ratified the Fifth Amendment nor supported by subsequent Supreme Court decisions interpreting it. As Justice Frankfurter analyzed a similar claim, “In effect, we are asked to enter the domain of penology, and more particularly that tantalizing aspect of it, the proper apportionment of punishment. Whatever views may be entertained regarding severity of punishment, whether one believes in its efficacy or its futility, these are peculiarly questions of legislative policy.” Citations omitted. Gore v. United States, 357 U.S. 386 at 393 , 78 S.Ct. 1280 at 1285 , 2 L.Ed.2d 564 (1958). I submit the majority opinion in the name of double punishment doctrine invades the power of the legislature to define crimes and prescribe punishment. Accordingly, I must dissent.

. The “deliberate bypass” standard employed by our courts in determining whether constitutional issues improperly preserved at trial may be raised in post-conviction proceedings is similar to the “cause and prejudice” standard employed in the federal system for making determination in habeas proceedings. Wainwright v. Sykes, 433 U.S. 72 , 95 n.1, 97 S.Ct. 2497 , 2500 n.1, 53 L.Ed.2d 594 (1977) (Stevens, J., concurring).

. For a discussion of the historical development of the concept of double jeopardy see Bartkus v. Illinois, 359 U.S. 121, 151-155 , 79 S.Ct. 676, 695-697 , 3 L.Ed.2d 684 (1959) (dissenting opinion of Justice Black).

. At common law double jeopardy was in the nature of a plea of abatement. The technical plea was either autrefoits acquit or autrefoits convict. See 2 Hawkins, Pleas of the Crown, 522-537 (6th ed. 1777). Either plea was an absolute bar to a subsequent prosecution as “the party ought not to be brought twice into danger of his life for the same crime.” Id. at 534.

. The original proposal would have protected a defendant from “more than one punishment or one trial for the same offense . . . ” United States v. Wilson, 420 U.S. 332, 341 , 95 S.Ct. 1013, 1021 , 43 L.Ed.2d 232 (1975), citing I Annals of Congress 434 (1789).

. Section 560.135, RSMo 1969, provided that a person convicted of robbery in the first degree by means of a dangerous and deadly weapon could be sentenced to death or imprisonment ranging from a minimum of 5 years to life. Those convicted of robbery in the first degree could be sentenced only to imprisonment ranging from a minimum of 5 years to life. Id. *610 Subsequently in 1975 the legislature amended the statute and provided that the punishment for both robbery in the first degree and robbery in the first degree by means of a dangerous and deadly weapon would be imprisonment ranging from a minimum of 5 years to a life term. § 560.135, RSMo Supp.1975.

Section 559.225, RSMo Supp.1976 provides:

1. 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 dr suspended imposition or execution of sentence for a period of three calendar years.

2. Any person convicted of a second offense of armed criminal action shall be punished by imprisonment by the division of corrections for a term of not less than five years. The punishment imposed pursuant to this subsection shall be in addition to any punishment provided by law for the crime committee [sic] 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 five calendar years.

3. Any person convicted of a third or subsequent offense of armed criminal action shall be punished by imprisonment by the division of corrections for a term of not less than ten 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 ten calendar years.

4.The provisions of this section shall not apply to the felonies defined in sections 559.-005, 564.590, 564.610, 564.620, 564.630, and 564.640, RSMo.

. It is true that conviction of both robbery in the first degree and armed criminal action will affect a prisoner’s eligibility for parole. See Rules and Regulations Governing the Granting of Paroles, Conditional Releases, and Related Procedures, Missouri Board of Probation and Parole, pp. 8-10 (1979). However such delay in parole eligibility would be present upon a conviction for armed criminal action alone. Id., § 559.225, RSMo Supp.1976. The mere fact that multiple convictions occur and consecutive sentences are imposed does not alter eligibility for parole in any way. Rules and Regulations Governing the Granting of Paroles, Conditional Releases, and Related Procedures, Missouri Board of Probation and Parole, pp. 11-12 (1979).

. This Court has held that punishment enhancement schemes which impose additional liability upon conviction of a crime if certain facts are shown to exist (i. e., previous convictions) are not violative of double jeopardy. See § 556.280, RSMo 1969 (repealed); § 558.016, RSMo 1978; State v. Johnstone, 335 S.W.2d 199, 204 (Mo.1960), ce rt. denied, 364 U.S. 842 , 81 S.Ct. 81 , 5 L.Ed.2d 66 (1960). It is difficult to perceive a functional difference between a sentence enhancement scheme and the “armed criminal action-first degree robbery consecutive punishment plan” the majority now holds is forbidden by the Fifth Amendment to the United States Constitution.

. At the time of the enactment of the armed criminal action statute law enforcement authorities initiated a publicity campaign warning “use a gun, go to prison.” Whether the armed criminal action statute sub judice furthered these important goals is a matter for legislative determination. Fixing punishment for crimes defined by statute is the province of the legislature, not the courts. State v. Alexander, 315 Mo. 199 , 285 S.W. 984, 985 (1926); State v. Higgins, 592 S.W.2d 151 (Mo. banc 1979), appeal dismissed, 446 U.S. 902 , 100 S.Ct. 1825 , 64 L.Ed.2d 254 (1980).

. MCLA 750.227b provides:

(1)A person who carries or has in his possession a firearm at the time he commits or attempts to commit a felony, except the violation of section 227 or section 227a, is guilty of a felony, and shall be imprisoned for 2 years. Upon a second conviction under this section, the person shall be imprisoned for 5 years. Upon a third or subsequent conviction under this section, the person shall be imprisoned for 10 years.

(2) The term of imprisonment prescribed by this section shall be in addition to the sentence imposed for the conviction of the felony or the attempt to commit the felony, and shall be served consecutively with and preceding any term of imprisonment imposed for the conviction of the felony or attempt to commit the felony.

(3) The term of imprisonment imposed under this section shall not be suspended. The person subject to the sentence mandated by this section shall not be eligible for parole or probation during the mandatory term imposed pursuant to subsection (1).

As is readily apparent from the face of the statute, it is indistinguishable in all important details from the Missouri armed criminal action statute. See n.8 supra.

. In the jurisdictional statement filed on October 15, 1979, in Brintley v. Michigan, No. 79-5506, appeal dismissed, 444 U.S. 948 , 100 S.Ct. 418 , 62 L.Ed.2d 317 (1980), Brintley’s counsel argued that conviction and consecutive punishment in one proceeding for armed robbery and felony firearm under MCLA 750.227b constituted double jeopardy as multiple punishment. The argument headings contained in the statement of jurisdiction spell out this claim. “1. THE DOUBLE JEOPARDY CLAUSE IS A SUBSTANTIVE LIMITATION ON THE MICHIGAN LEGISLATURE.” Appellant's Statement of Jurisdiction, page 8. “II. THE VIOLATION OF § 750.227b ALLEGED IN COUNT II OF EACH INFORMATION REQUIRED PROOF OF ALL ELEMENTS CONTAINED IN COUNT I, AND THUS THE OFFENSES WERE THE SAME FOR DOUBLE JEOPARDY PURPOSES.” Appellant’s Statement of Jurisdiction, page 11. “III. CONVICTION UNDER § 750.227b REQUIRES PROOF OF A SPECIFIC FELONY.” Appellant’s Statement of Jurisdiction, page 12. “IV. MR. BRINTLEY’S SENTENCE HAS BEEN TWICE AUGMENTED UNDER TWO STATUTES WHICH ARE THE SAME FOR DOUBLE JEOPARDY PURPOSES.” Appellant’s Statement of Jurisdiction, page 15. “V. THE DOUBLE JEOPARDY CLAUSE BARS MULTIPLE CONVICTIONS ARISING FROM A SINGLE ACT OCCURRING AT ONE PLACE, AT ONE TIME, AND FOR ONE PURPOSE.” Appellant’s Statement of Jurisdiction, page 16. The Supreme Court necessarily rejected all these contentions in respect to MCLA 750.227b virtually identical in its consecutive punishment scheme to § 559.-225, RSMo Supp.1976. Such rejection is of precedential value in this case and we are bound to follow it. Hicks v. Miranda, 422 U.S. 332, 344, 345 , 95 S.Ct. 2281, 2289, 2290 , 45 L.Ed.2d 223 (1975).