State v. Baker

BARDGETT, Judge

(concurring).

I concur in the principal opinion except for what is said therein concerning the validity of amended Rule 24.04.

The principal opinion holds section 546.-480 to be unconstitutional for reasons wholly apart from the fact that amended Rule 24.04 exists and facially authorizes multiple-count trials for separate offenses. Thus, the result reached by the principal opinion — reversal and remand for resen-tencing with directions to the trial court to exercise its discretion as to concurrent or consecutive sentences — would obtain in this case even if amended Rule 24.04 did not authorize a multiple-count trial for separate offenses.

A divisional opinion in this case, which was not adopted, held there had been no knowing waiver entered by defendant because the defendant did not know that, by proceeding to trial on multiple counts, he would be subjected to mandatory consecutive sentences if he was convicted of more than one offense. The principal opinion holdá section 546.480 unconstitutional and remands the case for resentencing with directions to the trial judge to exercise his discretion with respect to concurrent or consecutive terms. The defendant did request that he be tried on all offenses in one trial. Therefore, any ignorance on the part of defendant with respect to mandatory consecutive sentences is rendered harmless because he will now be entitled to have the trial court exercise its discretion as to how the terms will be served.

Therefore, in my opinion, the issues necessary to a disposition of this case do not include the question of the validity of amended Rule 24.04 and, consequently, what is said concerning the validity of that rule is, in my opinion, dictum.

The validity vel non of amended Rule 24.04 ought to await a case in which that issue is necessary to the decision. Nevertheless, since it inferentially may appear that amended Rule 24.04 is held valid in this case, I believe the following observations are pertinent, alheit. also dicta

I agree that neither the Federal nor state constitutions prohibit a person from being tried and convicted for several offenses in* the same trial. By that I mean there is .unconstitutional prohibition against that branch of government which has the power to change substantive (not constitutional) rights from authorizing multiple-count trials and convictions. That branch of *132 government is the legislative branch. Whether or not a person can be convicted in one trial of more than one offense is, in my opinion, a matter of substantive law and can be changed only by legislative action and not by court rule. A defendant can, however, waive that right as was done in the instant case and as was done by the defendant in State v. Terry, 325 S.W.2d 1 (Mo.1959). The Terry opinion makes clear that the right not to be convicted of more than one offense in the same trial is a substantive right. This court is prohibited by Art. V, § 5, Mo.Const.1945, V.A.M.S., from changing substantive rights by court rule.

The fact that Rule 24.04, as adopted in 1952, as set forth in footnote 3 of the principal opinion, authorizes the joinder of counts for larceny and embezzlement, or for larceny and obtaining money by false pretenses, or for burglary and larceny, does not, in my opinion, support amended Rule 24.04. The earlier court rule was merely a rescript of sections 545.120 and 560.110 RSMo 1969, V.A.M.S., which constituted statutory authority for such charges and trial.

The principal opinion makes reference to Rule 8(a) of the Federal Rules of Criminal Procedure which rule authorizes multiple-count trials and convictions. However, the Federal rule was adopted pursuant to Title 18 U.S.C. § 3771 which requires that rules with respect to proceedings prior to and including verdict be reported to Congress at or after the beginning of a regular session thereof but not later than the 1st of May, and that the rule shall not be effective until 90 days after it is so reported. Thus, Federal Rules of Criminal Procedure adopted pursuant to Title 18 U.S.C. § 3771 will have received congressional approval before they become effective.

I have set forth the foregoing in order that my concurrence in the principal opinion will not be understood to inferentially constitute agreement that amended Rule 24.04 is a valid exercise of rule-making power under Art. V, § 5, Mo.Const.1945. That question is, in my opinion, not foreclosed by the court’s decision in this ease.