Petition — Missouri v. Sours

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** Bupreme Court, U.

FILED

‘) APR 7% 1980

—

“MICHAFL RODAK, JR., CLERR_ |

Re 9 ornare came,

In the Supreme Court of the United States

October Term, 1979 |

STATE OF MISSOURI,

Petitioner,

VS.

WILLIAM SCOTT SOURS,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF MISSOURI

JOHN ASHCROFT

Attorney General

Paut Rosert Otto

Assistant Attorney General

P. O. Box 899

Jefferson City, Missouri 65102

(314) 751-3321

Attorneys for Petitioner

STEVEN W. GARRETT

Assistant Attorney General

Of Counsel

E. L. Mznpenwatt, Inc., 926 Cherry Street, Kansas City, Mo. 64106, (816) 421-3030

| Se ANIC AME BSE SNE ER ORC Ue Clay CNL Th 1

SumioGicraenses Semeennenes ok sk 2

GUC FOUN nc i 2

Constitutional and Statutory Provisions Involved ........ 3

Ne eee eee venmnionasennne 4

Reasons for Granting the WYit —....2.......20......ccccceeeeeeseeees 5

ME ecg, eee LO tk 9

Appendix A—Opinion, Supreme Court of Missouri .... Al

Appendix B—Relevant Missouri Statutes .......0.........0.0..-. A32

Appendix C—Relevant Michigan Statutes 00.0000... A34

Table of Authorities

CasEs CITED

Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180,

eB | RRNA RU EAE NRRL PAPE 7,8

Brintley v. Michigan, ........ SMR eictod , 100 S.Ct. 418, 62

BAA RT CUED Niassa on is cschcndbeadeadaabadeaad 2,5, 6, 7,8

Hicks v. Miranda, 422 U.S. 332, 95 S.Ct. 2281, 45 L.Ed.2d

NE ae a 6

Jones v. Commonwealth, 218 Va. 18, 235 S.E.2d 313

RI i iheaiic ich bai a eain ac ctla thane dlaneaiiendeilin likin sowsioetaolielacae 7,8

Kowalski v. Parratt, 533 F.2d 1071 (8th Cir. 1976), cert.

denied, 429 U.S. 844 (1976) on.n.n.n.ececcccccccccccclccceseesscceees 7,8

Mandel v. Bradley, 432 U.S. 173, 97 S.Ct. 2238, 53

I I iil ated dire Siena hn 6

North Carolina v. Butler, . ..... U.S. ........ , 99 S.Ct. 1755,

ES) NC re ann aN UU ee OER 7

Oregon v. Hass, 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d

we oa eR TCU AE RITE Ae PRS UEC TAS Dea Ie 7

Sours v. State, No. 61,458 (Mo. banc January 15, 1980)

Boge SONS I I Nati Ra) Cn nate (A US IR MN 2, 4, 5, 6, 7, 8, 9

State v. Boudreau, 113 RI 497, 322 A.2d 626 (1974) ... 8

State v. Hudson, ...... Tenn. ...... , 562 S.W.2d 416 (1978) 8

State v. Saxon, 193 Neb. 278, 226 N.W.2d 765 (1975) ..... 7

State v. Treadway, 558 S.W.2d 646 (Mo. banc 1977),

cert. denied, 439 U.S. 838, 99 S.Ct. 124, 58 L.Ed.2d 135

RE AR Aiea, STEER Res Boe eRe ML Bee) ee 4,5,8

State v. Valentine, No. 60,349 (Mo. July 17, 1979) ........ 4

State v. Woods, 574 S.W.2d 942 (Mo.App., St.L.D.1978) 4

United States v. Hearst, 412 F. Supp. 877 (N.D. Calif.

Wayne County Prosecutor v. Recorder’s Court Judge,

406 Mich. 374, 280 N.W.2d 793 (197%) ....cccccccccccecescseeeees 7,8

Whitton v. State, 479 P.2d 302 (Alera 1979) oo. 8

STATUTES Ci1TED

Section 560:120, RSMo 1060 ......................ccecceccecscscecccssecees 2, 3, 4

Section 560.135, RSMo Supp. 1975 ...........cccccccccccesceceeeeeees 2,3, 4

RU PIN NS ooo coos c cca cccbsevcsesccebecescescoanons 2,3

UT, TO Roca cack cccnsstcoredovcsebesaccaes 2,3

I oa salu apconateaisiun 8

MT occas ecenstnsecataldguguubebobidehods’ 6

OID a isis ces cusnccivnccesnpcmusubcdeeiccsbhcedais--otdben 2

Section 559.225, RSMo Supp. 1976 ...............c.ccccecsceeeeseseseees 3

CONSTITUTIONAL PROVISIONS CITED

United States Constitution, Fifth Amendment .............. 3,5

Article I, Section 19, Missouri Constitution (1945) ...... 5

In the Supreme Court of the United States

October Term, 1979

STATE OF MISSOURI,

Petitioner,

vs.

WILLIAM SCOTT SOURS,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF MISSOURI

Petitioner, the State of Missouri, prays that a writ

of certiorari issue to review the judgment and opinion of

the Supreme Court of Missouri entered in the above-

entitled cause on January 15, 1980.

OPINION BELOW

The opinion of the Supreme Court of Missouri, as yet

unreported, is styled and numbered as follows: William

Scott Sours, Appellant v. State of Missouri, Respondent,

No. 61,458 in the Supreme Court of Missouri, en banc.

A. copy of the opinion is reprinted as Appendix A.

JURISDICTIONAL STATEMENT

Judgment was entered in this cause by the Supreme

Court of Missouri on January 15, 1980. On February 11,

1980, the Supreme Court overruled both respondent’s mo-

tion to stay mandate and respondent’s motion for rehearing.

The present petition is filed within ninety days of the

entry of judgment in this case, and this Court’s jurisdic-

tion is invoked under 28 U.S.C. § 1257(3).

QUESTIONS PRESENTED

1. Whether the Missouri Supreme Court’s decision

in Sours v. State, No. 61,458 (Mo. banc January 15, 1980),

wherein the Court held that convicting respondent. in a

single proceeding, of both the underlying felony (first

degree robbery, § 560.120, RSMo 1969 and § 560.135, RSMo

Supp. 1975), and the “greater offense” (armed criminal

action, § 559.225, RSMo Supp. 1976), violates the double

jeopardy clause of the Fifth Amendment to the United

States Constitution, conflicts with this Court’s decision, on

the merits, regarding the same federal constitutional issue

rendered in Brintley v. Michigan, ........ V2 , 100 S.Ct.

418, 62 L.Ed.2d 317 (1979), wherein this Court dismissed,

for want of a substantial federal question, petitioner’s

appeal which sought to review the Michigan Supreme

Court’s decision holding that the double jeopardy clause

of the Fifth Amendment to the United States Constitution

was not violated by convicting a defendant separately,

of both armed robbery, § 750.593, M.C.L.A. and possession

of a firearm during the commission of a felony, § 750.227b,

M.C.L.A.

2. Whether the double jeopardy clause of the Fifth

Amendment to the United States Constitution is violated

by convicting a defendant in one proceeding, of both first

degree robbery, § 560.120, RSMo 1969 and § 560.135, RSMo

Supp. 1975, and armed criminal action, § 559.225, RSMo

Supp. 1976, where all proofs required to establish violation

of the former are necessarily required for proof of viola-

tion of the latter.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

United States Constitution, Fifth Amendment, reads

as follows:

“No person shall be held to answer for a capital,

or otherwise infamous crime, unless on a presentment

or indictment of a grand jury, except in cases arising

in the land or naval forces, or in the militia, when

in active service in time of war or public danger; nor

shall any person be subject for the same offence to

be twice put in jeopardy of life or limb; nor shall

be compelled in any criminal case to be a witness

against himself, nor be deprived of life, liberty, or

property, without due process of law, nor shall private

property be taken for public use without just compen-

sation.”

Section 560.120, RSMo 1969, § 560.135, RSMo Supp.

1975, and § 559.225, RSMo Supp. 1976, are set forth in

Appendix B. Sections 750.227b and 750.529, M.C.L.A. are

set forth in Appendix C.

STATEMENT OF THE CASE

After pleading guilty to charges of first degree rob-

bery, § 560.120, RSMo 1969, and § 560.135, RSMo Supp.

1975, and armed criminal action, § 559.225, RSMo Supp.

1976, respondent was sentenced to five (5) years imprison-

ment on the charge of first degree robbery and three (3)

years imprisonment on the charge of armed criminal action,

said sentences to run consecutively. Although respondent

recognized that he could be convicted of both first degree ©

robbery and armed criminal action, based on the long-

standing case law in existence in Missouri, State v. Valen-

tine, No. 60,349 (Mo. July 17, 1979); State v. Woods, 574

S.W.2d 942 (Mo.App., St.L.D. 1978); and State v. Tread-

way, 558 S.W.2d 646 (Mo. banc 1977), cert. denied, 439

U.S. 838, 99 S.Ct. 124, 58 L.Ed.2d 135 (1978), respondent

raised the argument on appeal alleging that a different

offense from robbery in the first degree was involved,

ie., robbery in the first degree by means of a dangerous

and deadly weapon. Respondent argued that robbery in

the first degree (not with a dangerous and deadly weapon)

was a lesser included offense of robbery in the first degree

by means of a dangerous and deadly weapon, in that the

additional element needed to prove the latter was the use

of a “dangerous and deadly weapon.” However, the Mis-

souri Supreme Court specifically rejected this argument

in its decision (of which petitioner seeks review), stating

that, although the element of fear required under § 560.120,

RSMo 1969, was produced by a dangerous and deadly

weapon, the use of a dangerous and deadly weapon is not

an element of robbery first degree and, thus, is mere

surplusage. Sours v. State, No. 61,458 (Mo. banc Jan-

uary 15, 1980) at 13-14, footnote 3. The court went on

to say that, if its holding in Treadway is valid; to wit,

that robbery first degree is not included in armed criminal

action, appellant’s motion for post-conviction relief cannot

be sustained. Id. Ultimately, the court went on to hold

that a conviction for both robbery first degree and armed

criminal action places a defendant twice in jeopardy by

multiplying the punishment for one offense and, as such,

violates the double jeopardy clause of the Fifth Amend-

ment to the United States Constitution. It is from that

decision that petitioner seeks this Court’s review.

REASONS FOR GRANTING THE WRIT

Petitioner submits that a writ of certiorari should

issue in the case at bar for the reason that the Missouri

Supreme Court’s holding in Sours v. State, No. 61,458 (Mo.

banc January 15, 1980), that a conviction for both first

degree robbery and armed criminal action places a defen-

dant twice in jeopardy, as proscribed by the Fifth Amend-

ment to the United States Constitution, conflicts with a

recent decision of this Court summarily dismissing an

appeal for want of a substantial federal question. Brintley

v. Michigan, ........ | & «Sean , 100 S.Ct. 418, 62 L.Ed.2d 317

(1979). The question which Brintley had sought to pre-

sent was as follows:

“Does double jeopardy clause prohibit separate con-

victions and sentences for violation of state statute,

§ 750.227b, proscribing possession of firearm during

1. It is interesting to note that the Missouri Supreme Court

in the Sours decision specifically found that respondent’s convic-

tions for both armed criminal action and first degree robbery

did not violate the double jeopardy provision of the Missouri

Constitution. Art. I, § 19, Mo. Constitution (1945). In addi-

tion, the court found that convicting appellant of first degree

robbery by means of a dangerous and deadly weapon, as opposed

to just first degree robbery, did not distinguish its instant case

from State v. Treadway, 558 S.W.2d 646 (Mo. banc 1977), cert.

denied, 439 U.S. 838 (1978), because the use of a dangerous and

deadly weapon is not an element of first degree robbery and,

thus, is mere surplusage.

commission of felony, and for underlying felony

(armed robbery in one case and second degree murder

in another), where all proofs required to establish

violation of underlying felony are necessarily required

for proof of violation of § 750.227b, where there is

no evidence that weapon has been possessed for any

other purpose than commission of underlying felony,

where underlying felony is specifically charged as

felony element of firearms possession charge, and

where (in armed robbery case) state has already aug-

mented punishment for armed robberies above punish-

ment imposed for unarmed robberies?” 26 Crim.L.

Rep. 4113.

Petitioner submits that a summary disposition such

as in Brintley v. Michigan, supra, is a disposition on the

merits. Such a disposition rejects the specific challenges

presented in the Statement of Jurisdiction and leaves un-

disturbed the judgment appealed from. Mandel v. Bradley,

432 U.S. 173, 97 S.Ct. 2238, 2240, 53 L.Ed.2d 199 (1977);

Hicks v. Miranda, 422 U.S. 332, 343-345, 95 S.Ct. 2281,

2289, 45 L.Ed.2d 223 (1975). While summary actions

should not be understood as breaking new ground, they

do prevent lower courts from coming to opposite conclu-

sions on the precise issues presented and necessarily de-

cided by those actions. Mandel v. Bradley, supra.

The Michigan statute, which appears in the appendix,

is remarkably similar to the Missouri Armed Criminal

Action Statute. The issue summarily dismissed for want

of a substantial federal question in Brintley is precisely

the same issue that the Missouri Supreme Court found

to be dispositive in its reversal of respondent’s conviction

for armed criminal action in Sours v. State, supra.

This court has manifested its disapproval of state court

expansion of federal constitutional rights as is evidenced

by this court’s opinion rendered in Oregon v. Hass, 420

US. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975), where it

was stated:

“A state is free as a matter of its own law to impose

greater res‘rictions on police activity than those this

Court holds to be necessary upon federal constitutional

standards. [citation omitted] But, of course, a State

may not impose such greater restrictions as a matter

of federal constitutional law when this Court specif-

ically refrains from imposing them.” Id., 420 U.S.

at 719.

See also North Carolina v. Butler, ........ Nes scscegts , 99 S.Ct.

i755, 1759, 60 L.Ed.2d 286 (1979).

That a definitive decision by this court is long overdue

is evidenced by the fact that diametrically opposed views

exist, regarding this issue, in different jurisdictions, both

state and federal. The following cases from other juris-

dictions have found that armed robbery and the use of

a firearm in the commission of that felony are distinct

offenses under the test set forth in Blockburger v. United

States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932),

because it was held that the charge of robbery contains

elements not necessarily included in the felony firearms

offense. State v. Saxon, 193 Neb. 278, 226 N.W.2d 765

(1975); Kowalski v. Parratt, 533 F.2d 1071 (8th Cir. 1976),

cert. denied, 429 U.S. 844 (1976); Wayne County Pros-

ecutor v. Recorder’s Court Judge, 406 Mich. 374, 280 N.W.

2d 793 (1979) (decision of the Michigan Supreme Court

giving rise to this Court’s decision in Brintley v. Michigan);

Jones v. Commonwealth, 218 Va. 18, 235 S.E.2d 313 (1977);

United States v. Hearst, 412 F. Supp. 877 (N.D. Calif. 1976),

It is interesting to note that the Missouri Supreme Court

in the Sours opinion stated that the foregoing jurisdiction’s

application of the Blockburger test was not consistent with

the application of that test as applied by this Court in

Harris v. Oklahoma, supra. The Missouri Supreme Court’s

comment is interesting because Hurris never cited the

Blockburger decision nor the test incorporated therein.

Even more interesting is the Missouri Supreme Court’s

statement in Sours that “after Harris, the application given

the Blockburger test in Wayne County, Jones, Kowalski,

Hearst and Treadway cannot survive.” Id. at 19. Indeed,

it was the Wayne County appeal (from the Michigan

Supreme Court, later styled Brintley v. Michigan) that

this Court dismissed for want of a substantial federal

question.

Recognizing, but neglecting the foregoing authority,

the Missouri Supreme Court chose to follow cases in other

jurisdictions which have recognized that convicting a de-

fendant of the use of a firearm in the commission of a

felony and of the underlying felony violates the double

jeopardy clause. Whitton v. State, 479 P.2d 302 (Alaska

1970); State v. Boudreau, 113 RI 497, 322 A.2d 626 (1974);

State v. Hudson, ........ p |, , 562 S.W.2d 416 (1978).

A definitive decision by this Court is necessary, not

only to clear up problems existing in regard to state law,

but to clarify the issue regarding federal legislation as

well. If the Missouri Supreme Court’s decision in Sours

is accepted by this Court, then certainly a federal district

court could never impose consecutive sentences upon a

defendant convicted of both using or carrying a firearm

in the commission of a federal felony pursuant to 18 U.S.C.

924(c) and of the underlying felony, despite statutory

language unequivocally expressing congressional intent

to permit such sentences. The predicate felony is, after

all, a lesser included offense of the firearms charge in

exactly the same sense that it was considered such in

the instant case.

Because every jurisdiction in this country is anxiously

awaiting a definitive decision by this Court on this issue

and because the facts of this case present the issue in an

excellent posture for this Court to review and, further,

because there exists a decision of this Court conflicting

with the Missouri Supreme Court’s decision in Sours v.

State, supra, it is respectfully requested that this Court

grant full review of this issue so as to resolve the con-

sternation regarding this issue not only in the state of

Missouri, but in every jurisdiction within this country.

CONCLUSION

For the foregoing reasons, the petition for writ of

certiorari should be granted.

Respectfully submitted,

JOHN ASHCROFT

Attorney General

Paut Rosert Otto

Assistant Attorney General

P. O. Box £99

Jefferson City, Missouri 65102

(314) 751-332"

Attorneys for Petitioner

STEVEN W. GARRETT

Assistant Attorney General

Of Counsel

APPENDIX

APPENDIX A

STATE OF MISSOURI,

Petitioner,

vs.

WILLIAM SCOTT SOURS,

Respondent.

No. 61458

Supreme Court of Missouri

En Banc

January 15, 1980

This is an appeal from the denial after hearing of

appellant’s Rule 27.26 motion to set aside convictions

entered October 4, 1977. Appellant seeks relief from con-

victions based on pleas of guilty to an information in two

counts charging robbery first degree by means of a dan-

gerous and deadly weapon, § 560.120, RSMo 1969 and

§ 560.135, RSMo Supp. 1975 (now § 569.020.1(2), RSMo

1978), and armed criminal action, § 559.225, RSMo Supp.

1976 (now § 571.015, RSMo 1978). Appellant contends

that convictions for both crimes based on one incident

violates his constitutional right against being twice placed

in jeopardy. Jurisdiction is in this Court because the

case involves the constitutionality of a statute of this state.

Mo. Const. art. V, § 3.

On May 14, 1977, appellant accompanied Charles

Mahan into a fast-food store named Mr. Quick, where

Mahan, armed with a pistol, took $949.06 from the store’s

clerk, Kendall Carnes. Mahan was charged with armed

robbery and pleaded guilty, receiving a sentence of five

years in the Department of Corrections. In an information

filed June 20, 1977, appellant was charged with both armed

robbery and armed criminal action. On October 5, 1977,

appellant pleaded guilty to both counts. On January 5,

1978, appellant 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.

On September 21, 1978, appellant filed a motion to

vacate the convictions and sentences, alleging that his

attorney rendered ineffective assistance; that the plea was

coerced by the threat of the use of allegedly false testimony

to be given by Charles Mahan; and that the conviction

for both first degree armed robbery and armed criminal

action placed him in double jeopardy. On April 3, 1979,

appellant by appointed counsel filed an amended motion

alleging that the conviction for both offenses violated

appellant’s constitutional right to be free from double

jeopardy; that the consecutive sentences should be vacated

because it is not mandatory for a sentence under the

armed criminal action statute to run consecutively with

the sentence for the underlying felony; that the trial court

did not properly advise the appellant as to the range of

punishment for the crimes with which he was charged;

that the trial court failed to obtain an adequate factual

basis before accepting appellant’s guilty pleas; and, that

the sequence in which the appellant was to serve the two

sentences should be reversed so as to permit him his stat-

utory opportunity to be released on parole.

In a hearing held April 16, 1979, appellant and his

attorney withdrew all of the allegations contained in the

amended motion except the claim based on double jeor-

ardy and that based on the court’s alleged erroneous

assumption that the armed criminal action statute required

consecutive sentencing. In this hearing, appellant and

respondent stipulated that both of the charges filed against

appellant arose from the same occurrence, and that there

was only one robbery involved.

On April 19, 1979, the court sustained the part of

the motion that was based on the court’s erroneous assump-

tion that it could not make the armed criminal action

sentence run concurrently with the robbery sentence. As

a correction of the sentence entered January 5, 1978, the

court resentenced appellant to five years on the robbery

charge and three years on the armed criminal action

charge, the sentences to run concurrently. Also on

April 19, 1979, the court denied the part of the motion

that was based on the clair. ~f double jeopardy. On June 5,

1979, appellant filed with the circuit court his notice of

appeal to this Court.

We are not here presented with a case involving

multiple prosecutions for the same offense. The only

question presented in this appeal is whether it constitutes

double jeopardy to charge and convict a defendant in a

single prosecution with both first degree robbery by means .

of a dangerous and deadly weapon and armed criminal

action arising out of the same incident. We find that

armed criminal action and the underlying felony, in this

case robbery first degree, are the ‘‘same offense” for double

jeopardy purposes. We reverse appellant’s conviction for

armed criminal action and affirm appellant’s conviction

for robbery. To the extent that our decisions in State —

v. Valentine, 584 S.W.2d 92 (Mo. banc 1979) and State

v. Treadway; 558 S.W.2d 646 (Mo. banc 1977), cert. denied,

439 U.S. 838 (1978) are inconsistent with this opinion,

we disapprove those cases.

Analysis begins with the double jeopardy provision

in the Missouri Constitution. Mo. Const. art. I, § 19 pro-

hibits the state from placing a person “again in jeopardy

of life or liberty for the same offense, after being once

acquitted by a jury.” This language has been interpreted

to apply ‘only where there has been an acquittal of the

defendant by a jury.” Murray v. State, 475 S.W.2d 67,

70 (Mo. 1972); Kansas City v. Henderson, 468 S.W.2d

48, 52 (Mo. 1971), cert. denied, 404 U.S. 1004 (1971).

Since the convictions from which appellant seeks relief

were obtained in a single prosecution, Mo. Const. art. I,

§ 19 does not apply in this case.

While the double jeopardy provision in the Missouri

Constitution does not resolve the issue presented, Benton

v. Maryland, 395 U.S. 784, 793-96 (1969) has held that

the double jeopardy clause of the fifth amendment to

the United States Constitution does apply to the states

through the fourteenth amendment, because it is ‘“funda-

mental to the American scheme of justice.” The fifth

amendment provides: ‘[NlJor shall any person be subject

for the same offense to be twice put in jeopardy of life

or limb.” This provision prohibits not only multiple pros-

- ecutions but also multiple punishments for the same of-

fense. North Carolina v. Pearce, 395 U.S. 711 (1969),

decided the same day as Benton, stated that the 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 con-

viction. And it protects against multiple punishments

for the same offense.

Id. at 717; Brown v. Ohio, 432 U.S. 161, 165 (1977); State

v. Parsons, 513 S.W.2d 430, 438 (Mo. 1974). The Court

in Pearce quoted at length from ‘“‘the landmark case” of

Ex parte Lange, 85 U.S. (18 Wall.) 163 (1874) as providing

“the controlling constitutional principle.” 395 U.S. at 717.

The protection against multiple punishments was estab-

lished in Lange in the following language:

For of what avail is the constitutional protection

against more than one trial if there can be any num-

ber of sentences pronounced on the same verdict?

Why is it that, having once been tried and found guilty,

he can never be tried again for that offence? Man-

ifestly it is not the danger or jeopardy of being a

second time found guilty. It is the punishment that

would legally follow the second conviction which is

the real danger guarded against by the Constitution.

But if, after judgment has been rendered on the con-

viction, and the sentence of that judgment executed

on the criminal, he can be again sentenced on that

conviction to another and different punishment, or

to endure the same punishment a second time, is the

constitutional restriction of any value? Is not its

intent and its spirit in such a case as much violated

as if a new trial had been had, and on a second con-

viction, a second punishment inflicted?

The argument seems to us irresistible, and we do

not doubt that the Constitution was designed as much

to prevent the criminal from being twice punished

for the same offence as from being twice tried for it.

85 U.S. (18 Wall.) at 173. The principle that the double

jeopardy clause prohibits double punishments for the same

offense has been reaffirmed in subsequent decisions of

the United States Supreme Court in Simpson v. United

States, 435 U.S. 6, 11 n. 5 (1978); Brown v. Ohio, 432

U.S. 161, 165 (1977); Jeffers v. United States, 432 US.

137 (1977) (plurality opinion, at 155; opinion of Stevens,

J., concurring in part and dissenting in part, at 159°n. 5);

and Iannelli v. United States, 420 U.S. 770, 786 n. 18 (1975).

On more than one occasion, this Court has held that

“where in law and in fact there is only one crime,” the pro-

tection of the double jeopardy clause against multiple

punishments for the same offense forbids convicting and

punishing a defendant for two offenses in one proceeding.

State v. Parsons, 613 S.W.2d 430 (Mo. 1974). Accord,

State v. Neal, 514 S.W.2d 544 (Mo. banc 1974). Cf. State

v. Richardson, 466 S.W.2d 537 (Mo. banc 1970).

In State v. Parsons, 513 S.W.2d 430 (Mo. 1974), the

defendant was convicted in one proceeding of first de-

gree murder of his wife by bombing (Count I), and of

putting a person in danger of bodily injury or death by

willfully and maliciously exploding a bomb (Count II), a

violation of § 564.560, RSMo 1969. The defendant was

sentenced to life imprisonment for the murder and to 99

years’ imprisonment for the bombing. The Court reversed

on double jeopardy grounds the defendant’s conviction of

the separate charge of bombing. The Court stated:

The bombing described in each count was the identical,

self-same bombing. The person charged in Count I

to have been killed by the bombing is the identical,

self-same person whose life was charged to have been

endangered by bombing, in Count II. The bombing

which endangered the victim’s life was one and the

same, inseparable and indivisible with the bombing

which took her life. The victim’s death was instan-

taneous and simultaneous with the explosion of the

bomb. The bomb was the death weapon. The neces-

sary act toward the commission of the murder was

the bombing. Likewise, the necessary act toward the

commission of the bombing was the identical act neces-

sary to constitute the crime of murder. The bombing

was an incident included in the crime of murder as

charged but the state has obtained a conviction not

only of the crime of murder by bombing but also a

conviction for the incident of bombing. Absent a

waiver ... a person cannot be “tried and convicted

for a crime which has various incidents included in

it,’ and at the same time be tried for one of those in-

cidents, “without being twice put in jeopardy for the

same offense.” In re Nielsen, 131 U.S. 176, 188, 9 S.Ct.

672, 676, 33 L.Ed. 118 (1889). There was but one

crime. The state cannot split a single crime and prose-

cute it in separate parts. State v. Toombs, 326 Mo.

981, 34 S.W.2d 61, 64 (1930); State v. Whitley, 382

S.W.2d 665 (Mo. 1964); State v. Richardson, 460 S.W.

2d 537, 539 [1] (Mo. banc 1970). If there is but a

single act of force proved as an incidental means of

committing a murder that act of force may not also

be charged as a separate crime. In that situation only

one punishment may be had.

513 S.W.2d at 437-38. (Emphasis added.) In State v. Neal,

514 S.W.2d 544 (Mo. banc 1974), the defendant was

charged in one proceeding of robbery first degree by means

of a dangerous and deadly weapon of Johnnie Walton

(Count I) and with assault with intent to kill with malice

aforethought of William Cordes (Count II) and of Johnnie

Walton (Count III). The defendant was convicted and

sentenced under all three counts. The Court reversed the

conviction and sentence under Count III, stating:

First, the robbery in this case of Cordes Hardware

by taking money from the custody of Johnnie Wal-

ton, Count I, was the result of the assault committed

upon Johnnie Walton and it was the identical assault

also charged in Count III. To thus split the single

crime of robbery and prosecute it in Count I and a

second time in Count III as an assault violated the rule

~against double jeopardy. State v. Richardson, 460

S.W.2d 537 (Mo. bane 1970). Accordingly, Count III

was improperly submitted; and the judgment, insofar

as it convicts defendant and sentences him to five years’

imprisonment for the offense there charged, must,

therefore, be reversed.

514 S.W.2d at 548. Thus, it is well established in Missouri

that if two statutory crimes constitute the “same offense,”

the protection against multiple punishment embodied in

the double jeopardy clause prohibits convicting a defen-

dant of both crimes in a single proceeding."

Because the double jeopardy clause prohibits multiple

punishments for the same offense, the criterion for dis-

tinguishing one offense from another for double jeopardy

purposes is crucial to resolution of this case. Conviction

and punishment for two distinct offenses arising out of the

same transaction does not offend the federal double

jeopardy provision. Gore v. United States, 357 U.S. 386.

. (1958); Blockburger v. United States, 284 U.S. 299 (1932).

Cf., State v. Moton, 476 S.W.2d 785, 790 (Mo. 1972); State

v. Whitley, 382 S.W.2d 665, 668 (Mo. 1964). .

1. In State v. Richardson, 460 S.W.2d 537 (Mo. banc 1970),

the defendant pleaded guilty in one proceeding to attempted

robbery by means of a deadly weapon, and was found guilty by

a jury in a subsequent proceeding of assault with intent to maim

without malice. Both prosecutions were based on a single inci-

dent. The sentence for the attempted robbery was ten years;

the sentence for the assault was three years. In reversing the

second conviction, the Court relied on the rule that “ ‘[i]f there is

but a single act of force proved as an essential element of the

crime of robbery, then such act of force cannot be availed of as

constituting the separate crime of assault.’” The Court cited

Wilkerson v. State, 41 Ala.App. 265, 130 S.2d 348, 349 (1961);

State v. Miller, 129 C.A.2d 305, 276 P.2d 846, 848 (1954); People

v. Logan, 41 Cal.2d 279, 290, 260 P.2d 20 (1953); State v. Wines,

47 N.J.Super. 235, 1385 A.2d 543, 544 (1957). In each of these

cases, the defendant was charged with multiple offenses in a

single proceeding, and it was held that only one conviction and

punishment could be had.

The test for determining whether two offenses are

“the same” for double jeopardy purposes was stated in

Blockburger v. United States, 284 U.S. 299, 304 (1932):

The applicable rule is that where the same act

or transaction constitutes a violation of two distinct

statutory provisions, the test to be applied to determine

whether there are two offenses or only one, is whether

each provision requires proof of a fact which the other

does not. Gavieres v. United States, 220 U.S. 338, 342,

and authorities cited. *

The Blockburger test has been reaffirmed on numerous

occasions, most recently in Simpson v. United States, 435

U.S. 6, 11 (1978); Brown v. Ohio, 432 U.S. 161, 166 (1977);

Jeffers v. United States, 432 U.S. 137 (1977) (plurality

opinion, at 150; opinion of White, J., concurring in part

and dissenting in part, at 158); Iannelli v. United States,

420 U.S. 770, 785 n. 17 (1975); Gore v. United States, 357

U.S. 386, 388 (1958). The word “each” is essential to a

proper application of the Blockburger criterion. If statute

A requires proof of a fact not required by statute B, but

statute B does not require proof of any fact not required

by statute A, then the offense defined by statute B is a

lesser included offense of that defined by statute A. The .

greater offense is the “same offense” as the lesser in-

cluded offense for double jeopardy purposes. Brown v.

Ohio, 432 U.S. 161, 167 (1977); Jeffers v. United States, 432

U.S. 137, 146, 150, 158 (1977); Harris v. Oklahoma, 433 U.S.

682, 682 (1977). See also United States v. Stavros, 597 F.

2d 108, 112 (7th Cir. 1979). The double jeopardy clause

prohibits successive prosecutions for both the lesser in-

cluded offense and the greater offense, and it prohibits the

imposition of a separate sentence for both the lesser in-

cluded offense and the greater offense.

Al0

Comparison of the two statutes under which the defen-

dant in the instant case was convicted is necessary for

application of the Blockburger test. In this case, the de-

fendant was convicted of robbery first degree, and armed

robbery, § 560.120, RSMo 1969 and § 560.135, RSMo

Supp. 1975, and of armed criminal action, § 559.225, RSMo

Supp. 1976. Section 560.120, RSMo 1969 provided:

Every person who shall be convicted of feloniously

taking the property of another from his person, or

in his presence, and against his will, by violence to

his person, or by putting him in fear of some imme-

diate injury to his person; or who shall be convicted

of feloniously taking the property of another from

the person of his wife, servant, clerk or agent, in

charge thereof, and against the will of such wife, ser-

vant, clerk or agent, by violence to the person of

such wife, servant, clerk or agent, or by putting him

or her in fear of some immediate injury to his or

her person, shall be adjudged guilty of robbery in

the first degree.

Section 560.135, RSMo Supp. 1975 provided:

Every person convicted of robbery in the first

degree by means of a dangerous and deadly weapon

and every person convicted of robbery in the first

degree by any other means shall be punished by im-

prisonment by the division of corrections for not less

than five years; every person convicted of robbery

in the second degree shall be punished by imprison-

ment by the division of corrections not exceeding five

nor less than three years; every person convicted of

robbery in the third degree shall be punished by im-

prisonment by the division of corrections not exceeding

five years.

All

Section 559.225.1, RSMo Supp. 1976 provided:

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 convic-

tion, 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 re-

lease or suspended imposition or execution of sentence

for a period of three calendar years.

As will be seen, the reference to “any felony” in

§ 559.225.1, RSMo Supp. 1976 mandates the conclusion

that the offense of armed criminal action includes the

underlying felony. Since the double jeopardy clause pro-

hibits the imposition of punishments both for the lesser

included offense and for the greater offense, the appellant’s

conviction for armed criminal action must be reversed.

The United States Supreme Court has never decided

whether robbery and the offense of committing a felony

by means of a dangerous and deadly weapon constitute

the “same offense” for double jeopardy purposes. The

Court expressly declined to rule on this issue in the recent

case of Simpson~v. United States, 435 U.S. 6 (1978). In

Simpson, the defendants were convicted in two separate

iury trials of two bank robberies committed in Middlesboro,

Kentucky, one on September 8, 1975, and the second on

November 4, 1975. For each of the two bank robberies,

the defendants were convicted of violating 18 U.S.C.

Al2

§ 2113(d) and 18 U.S.C. § 924(c) (1970). Section 2113 (d)

provides for penalties for assaulting or jeopardizing the

life of any person “by the use of a dangerous weapon

or device” in taking or attempting to take property belong-

ing to a bank or similar institution from another person

by force and violence or by intimidation. Section 924(c)

provides that whoever uses a firearm to commit any felony

or carries a firearm unlawfully during the commission

of any felony “shall, in addition to the punishment provided

for the commission of such felony, be sentenced to a term

of imprisonment for not less than one year nor more than

ten years.” The District Court rejected the defendants’

argument that sentencing under both sections constituted

multiple punishment forbidden by the double jeopardy

clause, and the Sixth Circuit Court of Appeals affirmed.

The Supreme Court expressly declined to decide whether

the two offenses were the same under the Blockburger

test, and found it unnecessary to decide whether sentencing

under both provisions was violative of the double jeopardy

clause protection against multiple punishment for the same

offense. 435 U.S. at 11-12. Instead, the Court analyzed

the legislative history of § 924(c) and determined that

“the section was intended to be unavailable to prosecutions

of § 2113(d).” Id. at 15.

The Court held that “in a prosecution growing out of

a single transaction of bank robbery with firearms, a de-

fendant may not be sentenced under both § 2113(d) and

§ 924(c).” Id. at 16. The Court deemed it unnecessary to

decide the constitutional question precisely because it found

that the legislature did not intend that a defendant be

. charged under both sections.

Cases in which the Government is able to prove

violations of two separate criminal statutes with pre-

cisely the same factual showing, as here, raise the

Al3

prospect of double jeopardy and the possible need to

evaluate the statutes in light of the Blockburger test.

That test, the Government argues, is satisfied in this

case. We need not reach the issue. Before an ex-

amination is made to determine whether cumulative

punishments for the two offenses are constitutionally

permissible, it is necessary, following our practice of

avoiding constitutional decisions where possible, to de-

termine whether Congress intended to subject the de-

fendant to multiple penalties for the single criminal

transaction in which he engaged. Jeffers v. United

States, 432 U.S. 137, 155 (1977).

Id. at 11-12. The obvious implication of this analysis is

that, had the legislature clearly intended that a person

be prosecuted under both sections 924(c) and 2113(d),

the question whether the two sections define the “same

offense” for double jeopardy purposes would have to be

addressed. See United States v. Makres, 598 F.2d 1072,

1078 (7th Cir. 1979); United States v. Dorsey, 591 F.2d 922,

940 (D.C. Cir. 1978); O’Clair v. United States, 470 F.2d

1199, 1203 (1st Cir. 1972); Wayne County Prosecutor v.

Recorder’s Court Judge, 406 Mich. 374, 280 N.W.2d 793,

805, 806-07 (1979) (Kavanagh, J., dissenting, and Levin,

J., dissenting); People v. Hughes, 85 Mich.App. 674, 272

N.W.2d 567, 572-74 (1978) (Walsh, J., dissenting). The

inference that the double jeopardy clause prevents giving

effect to the legislative intent to twice punish the “same

offense” is strengthened by consideration of Jeffers v.

United States, 432 U.S. 137 (1977).

In Jeffers, the defendant was charged with violations

of 21 U.S.C. § 848 (1970) conducting a continuing criminal

enterprise to violate the federal drug statutes, and was

charged along with nine codefendants with violations of

21 U.S.C. § 846 (1970) conspiracy to distribute heroin

and cocaine in violation of 21 U.S.C. § 841(c)(1) (1970).

Al4

The government sought to consolidate the two charges for

trial, but the defendants objected and the court denied the

motion to consolidate. Jeffers and six codefendants were

found guilty of the conspiracy charge. Jeffers then moved

to dismiss the continuing criminal enterprise charge on

double jeopardy grounds since all of the elements of the

conspiracy offense were included in the continuing crim-

inal enterprise offense. The Seventh Circuit Court of Ap-

peals agreed that the offense defined by § 846 was a lesser

included offense of that defined by § 848, but held that in

cases of complex statutory crimes greater and lesser of-

fenses could be separately punished if Congress so in-

tended, relying on an interpretation of Iannelli v. United

States, 420 U.S. 770 (1975). 532 F.2d 1101 (7th Cir.

1976). The Supreme Court rejected the Seventh Circuit’s

interpretation of Iannelli that a second trial on the “same

offense” was permissible under the double jeopardy clause

if Congress intended separate punishment. The plurality

opinion written by Justice Blackmun, joined by Justices

Burger, Powell, and Rehnquist, determined that even as-

suming, without deciding, that § 846 defines an offense that

is included in the offense defined in § 848, Congress did

not intend to allow cumulative punishment for violation of

§§ 846 and 848. The Court held that Jeffers could be

prosecuted separately for the lesser included offense be-

cause he had opposed consolidation and asked for separate

trials, but Jeffers’ actions did not permit him to be punished

twice. Accordingly, the fine imposed on the petitioner was

vacated to the extent that it exceeded the statutory maxi-

mum permitted under § 848.” The plurality opinion stated:

2. Justice White did not think that the § 846 offense was

a lesser included offense of the § 848 offense, and thus concurred

in the plurality opinion’s affirmance of petitioner’s conviction,

but dissented from the plurality’s action in vacating part of

petitioner’s fine. Justice Stevens was joined by Justices Brennan,

Stewart, and Marshall, in an opinion that concurred in the judg-

(Continued on following page )

Al5

The critical inquiry is whether Congress intended

to punish each statutory violation separately. ... In

Iannelli v. United States [420 U.S. 770 (1975) ], the

Court concluded that Congress did intended to punish

violations of § 1955 separately from § 371 conspiracy

violations. Since the two offenses were different, there

was no need to go further. See 420 US., at 785-786,

nn. 17-18. See also Gore v. United States, 357 U.S.

386 (1958). If some possibility exists that the two

statutory offenses are the “same offense” for double

jeopardy purposes, however, it is necessary to examine

the problem closely, in order to avoid constitutional

multiple-punishment difficulties.

432 U.S. at 155. (Emphasis added.) Here again, the

obvious implication is that where the legislature does intend

to punish two statutory offenses separately, but the offenses

are the “same offense” under the Blockburger criterion,

it is necessary to “go further” to avoid violation of the

double jeopardy clause protection against multiple punish-

ment.

The General Assemply clearly intended that both

§ 559.225.1, RSMo Supp. 1976 (now § 971.015, RSMo 1978)

and the statute defining the underlying felony be applied

to a defendant in a prosecution arising out of a single trans-

action. The statute expressly provides that “any person

Footnote continued—

ment to the extent that it vacated the cumulative fines, but dis-

sented from the affirmance of the conviction. Justice Stevens

stated that “[i]t is quite clear .. . that petitioner has been denied

his constitutional rights,” and argued that one fact that “clinch[ed]

the double jeopardy claim” was that “petitioner was not only

twice tried, but also twice punished for the same offense.” Id.

at 159 n. 5. Justice Stevens and the three concurring justices

would have reversed the subsequent conviction for the greater

offense of continuing criminal enterprise. Thus, eight justices

voted to vacate petitioner’s sentence at least to the extent it

exceeded the maximum punishment for the greater offense.

A16

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 shall be punished . . . in addition to any

punishment provided by law for the [underlying] crime.”

(Emphasis added.) Thus, section 560.225.1, RSMo Supp.

1976 provides for more than merely an enhanced sentence.

In this respect, the armed criminal action statute is differ-

ent from, and raises double jeopardy problems not raised by,

punishment enhancement provisions such as those con-

tained in § 558.016, RSMo 1978 for persistent or dangerous

offenders. The armed criminal action statute calls for con-

viction of a second crime and for the imposition of a second

sentence. Consequently, the question whether the two

crimes are the “same offense” for double jeopardy pur-

poses cannot be avoided.

In two recent cases, this Court addressed the question

whether convicting and punishing a person of both robbery

first degree and armed criminal action constitutes double

jeopardy. State v. Valentine, 584 S.W.2d 92 (Mo. banc

1979); and State v. Treadway, 558 S.W.2d 646 (Mo. banc

1977), cert. denied, 439 U.S. 838 (1978). In State v. Tread-

way, 558 S.W.2d 646 (Mo. banc 1977), the defendant was

convicted in one count of robbery first degree and in a

second count of armed criminal action. The defendant

moved to dismiss the armed criminal action count of the

information on the ground that prosecution for both rob-

bery first degree and armed criminal action subjected him

to multiple punishments for the same offense. The motion

was denied and the defendant appealed his convictions.

The Court observed that Missouri follows the “separate or

several offense rule” and not the “same transaction rule,” in

determining whether a defendant charged with two crimes

has been placed in double jeopardy. Id. at 651. If “each

offense necessitates proof of an essential fact or element

Al7

not required by the other” there is no identity of offense.

Id.; State v. Chambers, 524 S.W.2d 826, 829 (Mo. banc 1975),

cert. denied, 423 U.S. 1058 (1976); State v. Carter, 535

S.W.2d 537, 538 (Mo. App. 1976). Cf. Blockburger v.

United States, 284 U.S. 299, 304 (1932). The Court held

that first degree robbery and armed criminal action are

not the same offense under this test. Robbery first degree

does not require proof of the use of a dangerous and deadly

weapon; any means of the production of fear will sustain a

robbery conviction. Armed criminal action does require

proof of the use of a dangerous and deadly weapon. From

these considerations, the Court concluded that “Cs]ince the

two offenses are not the same in law, appellant’s double

jeopardy protection has not been abrogated.” Id. at 652.9

It is not clear that the analysis in Treadway applied both

halves of the Blockburger test. The Court considered only

whether armed criminal action included elements not in

robbery, and did not consider whether robbery contained

any elements not contained in armed criminal action.’

3. Appellant seeks to distinguish Treadway on the ground

that the defendant in Treadway was charged with robbery first

degree and armed criminal action whereas Count I of the in-

formation in this case charged appellant with armed robbery,

§ 560.135, RSMo Supp. 1975 and robbery first degree by means

of a dangerous and deadly weapon, § 560.120, RSMo 1969. This

effort to distinguish Treadway cannot succeed. The allegation

that the fear required under § 560.120, RSMo 1969 was produced

by a dangerous and deadly weapon is not an element of robbery

first degree and is mere surplusage. Keeny v. State, 461 S.W.2d

731, 732 (Mo. 1971); State v. Pope, 364 S.W.2d 564, 568 (Mo.

1963); State v. Vigus, 66 S.W.2d 854, 857 (Mo. 1933); State v.

Shuls, 329 Mo. 245, 44 S.W.2d 94, 96 (1931). Accord, State v.

Braddock, 558 S.W.2d 776, 779 (Mo.App. 1977); State v. Long,

539 S.W.2d 592, 594 (Mo.App. 1976); State v. Nelson, 532 S.W.2d

855, 856 (Mo.App. 1975). Consequently, if Treadway’s holding

that robbery first degree is not included in armed criminal action

is ol appellant’s motion for postconviction relief cannot be

sustained.

4. Treadway did quote language found in Kowalski _ v.

Parratt, 533 F.2d 1071 (8th Cir. 1976) that the “gist” of each

offense was different from that of the other. Kowalski found that

robbery and robbery with firearms were not the “same offense”

(Continued on following page)

i 4

Al8

Although Treadway did not apply the second half of the

Blockburger criterion for sameness of offense, cases from

other jurisdictions have found that armed robbery and the

use of a firearm in the commission of that felony are dis-

tinct offenses under the Blockburger test because robbery

contains elements not necessarily included in the felony-

firearm offense. State v. Saxon, 193 Neb. 283, 226 N.W.2d

765 (1975), habeas corpus relief denied, Kowalski v. Par-

ratt, 533 F.2d 1071 (8th Cir. 1976), cert. denied, 429 U.S.

844 (1976); Wayne County Prosecutor v. Recorder’s Court

Judge, 406 Mich. 374, 280 N.W.2d 793 (1979); Jones v.

Commonwealth, 218 Va. 18, 235 S.E.2d 313 (1977). See

also, United States v. Hearst, 412 F.Supp. 877 (N.D.Cal

1976).5 »

Footnote continued—

because the Nebraska weapons offense could be shown by proof

of “any felony” (and thus, robbery has elements not necessarily

in felony-firearm). Valentine does not expand on the analysis

used in Treadway. Valentine neither cites Blockburger nor at-

tempts to state what elements of robbery are not in armed

criminal action. Valentine merely cites Treadway for the claim

that “each crime contained elements not found in the other.”

584 S.W.2d at 96. Neither opinion analyzed the impact of

Harris v. Oklahoma, 433 U.S. 682 (1977) on the proper applica-

tion of the Blockburger criterion to the type of “felony-plus”’

statute involved here.

5. Wayne County Prosecutor v. Recorder’s Court J udge, ‘406

Mich. 374, 280 N.W.2d 793 (1979) reversed the dispositions given

two cases by separate panels of the Michigan Court of Appeals.

In one case, the defendant was convicted in a single trial of

second degree murder and of a violation of Michigan’s felony-

firearm statute, Mich. Comp. Laws Ann. § 750.227b (Supp. 1979);

in the other, the defendant was convicted in a single trial of

armed robbery and felony-firearm. The court of appeals vacated

the defendants’ respective convictions for felony-firearm. The

Michigan Supreme Court reversed the court of appeals in each

case and reinstated the convictions. The Michigan Supreme

Court concluded that the felony-firearm offense was distinct from

the underlying felony in each case, reasoning that the state was

not required to prove the particular felony charged in order to

convict the defendant of felony-firearm: “Any proper felony

would have sufficed.” 406 Mich. at ........ , 280 N.W.2d at 799.

(Emphasis supplied.) Similarly, in Jones v. Commonwealth, 218

‘Va. 18, 235 S.E. 2d 313 (1977), the Virginia Supreme Court af-

(Continued on following page)

Al9

In each of these cases there is no difficulty with the

claim that the felony-firearm statute includes an element

Footnote continued—

firmed the defendant’s convictions of robbery and of the use of

a firearm in the commission of a felony, a violation of Va. Code

§ 18.2-53.1 (1975) (antended 1276). The court stated:

The crime of robbery as defined at common law in-

volves a forceful taking by “violence or intimidation” but

such force need not be by means of the use or threat of pre-

senting a firearm. Robbery may be committed in many

ways, such as by partial strangulation or suffocation, or by

striking or beating with the fist or other less dangerous de-

vices. ... The “gist” of Code § 18.2-53.1 is the use of a

firearm in situations where it is likely that weapons may

be used to injure victims of robbery or bystanders. Under

the statute, such use is made a separate and distinct of-

fense. Thus, the crime of robbery and the crime of using a

firearm in committing robbery have different elements as a

matter of law, although they may have common elements

as a matter of fact.

Id. at 315. Again, Kowalski v. Parratt, 533 F.2d 1071 (8th Cir.

1976), cert. denied, 429 U.S. 844 (1976), affirmed the determina-

tion of the Nebraska Supreme Court in State v. Saxon, 193 Neb.

278, 226 N.W.2d 765 (1975) that felony-firearm does not include

robbery (the underlying felony) as a lesser included offense.

The court quoted the Blockburger criterion and stated:

Although the appellant assumes that count II [felony-

firearm, Neb.Rev.Stat. § 28-1011.21 (Supp. 1974)] required

proof of the robbery alleged in count I [Neb.Rev.Stat. § 28-414

(Supp. 1974)] that is not the case. The weapons statute is

satisfied by proof that a weapon was possessed or used dur-

ing any felony.

Id. at 1073. (Emphasis supplied.) In United States v. Hearst,

412 F.Supp. 877 (N.D.Cal. 1976), decided prior to the Supreme

Court’s ruling in’Simpson that Congress did not intend 18 U.S.C.

§ 924(c) to be available in prosecutions of 18 U.S.C. § 2113(d),

the defendant was charged with violations of both § 2113(d) and

§ 924(c) arising out of a single incident. The court in Hearst

quoted the Blockburger test and stated:

This standard is satisfied by the two offenses charged here,

for the reason that the first requires the use of any dan-

gerous weapon in the robbery of a bank, whereas the sec-

ond specifically requires the use of a firearm in the com-

mission of any felony.

Id. at 879. (Emphasis in original.) The defendant was con-

victed and sentenced under both § 2113(d) and § 924(c), the

two sentences to be served concurrently. The conviction under

§ 924(c) was subsequently vacated in the light of Simpson.

i978) States v. Hearst, 466 F.Supp. 1068, 1072 n. 3 (N.D. Cal.

A20 ,

not in the underlying felony, i.e., the use or possession

of a dangerous weapon. The central problem is whether

the underlying felony has any elements which are not

incorporated into the weapons offense. Wayne County,

Jones, Kowalski, and Hearst each single out the distinguish-

ing element of the particular felony involved, and stress

that the weapons offense need not include that element,

but may be committed by the use of a weapon in connec-

tion with any felony. This manner of applying the Block-

burger test makes the weapons offense appear to be distinct

from the underlying felony for double jeopardy purposes;

however, such an application of the Blockburger test is

not consistent with the application of that test in the

recent Supreme Court decision in Harris v. Oklahoma,

433 U.S. 682 (1977), reversing, 555 P.2d 76 (1976).

In Harris, the Oklahoma Court of Criminal Appeals

upheld a conviction for robbery with firearms, Okla.Stat.

Ann. tit. 21, § 801 (West 1958) (amended 1973), obtained

in a second prosecution following a conviction for felony-

murder, Okla.Stat.Ann. tit. 21, § 701 (West 1958) (re-

pealed 1973), arising out of the same incident. The Okla-

homa court reasoned that under the Blockburger test the

felony-murder statute and the underlying felony were dis-

tinct crimes. Section 701 provided that “[h]omicide is

murder . . . [w]hen perpetrated without any design to

effect death by a person engaged in the commission of

any felony.” (Emphasis added.) The Oklahoma Court of

Criminal Appeals stated that proof of the underlying felony

was required to prove the intent necessary for the felony-

murder conviction, but held that “robbery is a distinct

offense and is not part of the crime of homicide nor is

it an included crime.” 555 P.2d at 81.° The United States

6. The Oklahoma court appeared ambivalent on this point.

While it stated that the crime of robbery is not included in the

crime of homicide, it also said that “the proof of the underlying

felony is needed to prove the intent necessary for a felony

murder conviction.” 555 P.2d at 80-81.

A21

Supreme Court rejected the view that felony-murder did

not include the underlying felony. “When, as here, convic-

tion of a greater crime, murder, cannot be had without

conviction of the lesser crime, robbery with firearms, the

Double Jeopardy Clause bars prosecution for the lesser

crime after conviction of the greater one.” 433 U.S. at

682, citing In re Nielsen, 131 U.S. 176 (1889) and Brown

v. Ohio, 432 U.S. 161 (1977).

The Court’s conclusion that robbery with firearms is

a lesser included offense of felony-murder shows how the

“required proof” criterion of Blockburger must be applied.

The crime of armed criminal action consists of two features:

(1) any felony, and (2) the use of a dangerous and deadly

weapon in the commission of (1). The first feature may

be any one of a class of offenses, each of which consists

in turn of several elements. If (1) specified a single

felony, it would be obvious that armed criminal action

includes all of the elements of the felony specified. For

example, if § 559.225.1 said, “any person who commits

first degree robbery by, with, or through the use, assis-

tance, or aid of a dangerous or deadly weapon is also

guilty of armed criminal action,” it would be obvious that

armed criminal action includes first degree robbery and

that the double jeopardy clause prohibits conviction and

punishment for both offenses. Harris shows that the result

is no different where the statute refers to “any felony.”

Proof of armed criminal action still “cannot be had with-

out” proof of the underlying offense. Harris stands for

the proposition that when a statute defines a crime as

“any felony” plus other elements, proof of the particular

felony involved is required to prove that crime.’ In the

7. Cf., Schwartz, Multiple Punishment for the “Same Of-

fense”: Michigan Grapples with the Definitiona] Problem, 25

Wayne L.Rev. 825, 833 (1979):

(Continued on following page)

A22

language of Blockburger, the armed criminal action “provi-

sion [does not] require [] proof of a fact which the

[robbery first degree] statute does not.” Thus, as Harris

applies Blockburger, armed criminal action and the under-

lying felony constitutes only one offense and not two.

To prove that the appellant in the instant case committed

armed criminal action, the state is required to prove all

of the elements of robbery first degree; if it fails to prove

any element of robbery first degree, it fails to convict

Footnote continued—

Harris simply holds that convictions for both the greater

offense and the underlying offense are prohibited. Put

another way: Where offense number 1 consists of elements

A and B and element B consists of a class of offenses, of-

fense number 2, offense number 3 and so on, then one may

not be convicted of both offense number 1 and the offense

consisting of element B in that case. Although such a result

is obvious where element B consists of a single offense,

Harris mandates the same result when element B can con-

sist of one of several offenses. Where proof of one offense

requires proof of another offense, convictions for both are

barred, even though the underlying offense required to

prove the former changes from case to case.

This understanding of the Blockburger test does not affect our

holding in State v. Smith and Hodges, No. 61378 (Mo. banc, filed

Dec. 6, 1979) that trespass is not a lesser included offense of bur-

glary. In Smith and Hodges, we held that it is the elements of

the greater offense and not the allegations of the greater offense

found in the indictment or information which must be compared

with the legal and factual elements of the lesser offense to de-

termine whether one offense is a lesser included offense of an-

other. Unlike the burglary statute involved in Smith and Hodges,

the armed criminal action statute defines the offense as consisting

of any felony plus another element. Although a court need not

examine the factual averments of the greater offense in applying

the Blockburger test, a complete list of the elements of armed

criminal action cannot be generated until the underlying felony

is known. A criminal statute is nothing more than a description

of a certain type of conduct coupled with a provision that the

state will impose sanctions (fine or imprisonment) on any per-

son who conducts himself in the manner described. An “ele-

ment” of the offense is any part of the description which must

be satisfied before the state may impose sanctions. The armed

criminal action statute, like Oklahoma’s felony murder statute,

incorporates by reference to the statutory definition of another

offense (“any felony”) a portion of the description of the pro-

scribed conduct. That part of the description is supplied only

by observing which other statute is involved in the particular

case.

A23

appellant of armed criminal action. If the state could

not prove that appellant took Mr. Quick’s property from

the presence of its agent without the agent’s consent by

placing the agent in fear, it could not convict appellant

of armed criminal action.*

After Harris, the application given the Blockburger

test in Wayne County, Jones, Kowalski, Hearst, and Tread-

way cannot survive.

The argument is that .. . . armed robbery requires

proof of the occurrence of a robbery, which is not

required to prove felony-firearm, since that offense

can be committed in the course of almost any felony.

It is therefore contended that Blockburger does not

bar convictions for both offenses.

This argument proves too much. Applying this

argument to the situation confronted by the United

8. The two-count information filed against appellant on June

20, 1977, illustrates the fact that proof of armed criminal action

cannot be had without proof of robbery first degree in this case.

Count I alleged

that on or about the 14th day of May, 1977, in the County

of Jasper and State of Missouri, WILLIAM S. SOURS did

wilfully, unlawfully and feloniously by means of a certain

dangerous and deadly weapon, to-wit: a handgun, take,

stea[1] and carry away Nine Hundred Forty-nine and 06/100

($949.06) Dollars, lawful money of the United States of

America, the money and personal property of Mr. Quick,

then and there in the lawful care and custody of Kendall

Carnes, by then and there putting the said Kendall Carnes

in fear of an immediate injury to his person and then and

there did feloniously rob, take, steal and carry away the

said money and personal property from the person of, in the

presence of and against the will of the said Kendall Carnes

with the felonious intent to permanently deprive the owner

of the use thereof and to convert the same to his own use.

Count II alleged

that on or about the 14th day of May, 1977, in the County

of Jasper and State of Missouri, WILLIAM S. SOURS did

wilfully, unlawfully and feloniously commit a felony, to-wit:

Robbery First Degree, by and with the use, aid and assistance

of a dangerous or deadly weapon, to-wit: a handgun.

See Jeffers v. United States, 432 U.S. 137, 150 n. 16 (1977).

A24

States Supreme Court in Harris v. Oklahoma would

lead to a result different from that reached by the

Court. After all, robbery with firearms does not

require that a murder occur. Nor does felony-murder

require that the offense of robbery with firearms occur.

The United States Supreme Court, nonetheless, de-

clared that convictions for both felony-murder and

the underlying felony of robbery with firearms could

not stand.

Schwartz, supra note 7, at 851.

It has been argued that the rationale of Harris, which

involved successive prosecutions first for felony-murder

and then for the underlying felony, does not apply in the

context of a single proceeding involving multiple charges.

The argument that Harris does not apply in cases in which a

defendant is convicted of both crimes at the same trial has

been rejected in cases that follow Harris. State v. Pinder,

375 S.2d 836, 838 (Fla. 1979); Tyson v. State, ...... Ind.

combi , 386 N.E.2d 1185, 1193 (1979); Mitchell v. State,

Ree, , 382 N.E.2d 932, 934 (1978); Elmore v. State, ........

BR cca , 382 N.E.2d 893, 894-95 (1978); State v. Frye,

283 Md. 709, 393 A.2d 1372, 1375 (1978); State v. Innis,

ime RI. ........, 391 A.2d 1158, 1165 (1978), cert. granted,

440 U.S. 934 (1979); State v, Briggs, ........ Tenn. ........ , 073

S.W.2d 157, 159 (1978). The argument that the double

jeopardy clause does not prohibit punishing a defendant

for both of two crimes charged in a single prosecution

where one of the crimes is an incident included in the

other also contradicts the holding in State v. Neal, 514

S.W.2d 544, 548 (Mo. banc 1974) and State v. Parsons,

513 S.W.2d 430, 438 (Mo. 1974). This argument also

overlooks the fact that the case for which the “required

proof” test is named, Blockburger v. United States, 284

U.S. 299 (1932), itself involved a single prosecution.

“[TJhe prosecution may not do in one trial what it is

A25

prohibited from doing in two trials.” Elmore v. State, 382

N.E.2d at 894-95.

Cases in other jurisdictions have recognized that con-

victing a defendant of the use of a firearm in the commis-

sion of a felony and of the underlying felony violates the

double jeopardy clause. Whitton v. State, 479 P.2d 302

(Alaska 1970); State v. Boudreau, 113 RI. 497, 322 A.2d

626 (1974); State v. Hudson, ........ Tenn. ........ , 062 S.W.2d

416 (1978). In Hudson, the defendant was convicted in

one trial of four offenses—robbery by the use of a deadly

weapon, Tenn. Code Ann. § 39-3901 (Supp. 1978), assault

with intent to commit murder in the second degree, Tenn.

Code Ann. § 39-604 (1975), use of a firearm in committing

a felony, Tenn. Code Ann. § 39-4914 ( Supp. 1978), and

carrying a dangerous weapon with the intent to go armed,

Tenn. Code Ann. § 39-4901 (1975)—all arising out of an

incident in which the defendant took more than $5,000 in

cash at gunpoint from a bank’s customer and shot the vic-

tim in the leg. The “efendant’s sentences for armed rob-

bery and felony-firearm were ordered to run consecutively.

The defendant appealed, raising the issue whether the con-

victions for both felony-firearm and the underlying felony

violated the double jeopardy prohibition. The Tennessee

Supreme Court examined the felony-firearm provision® in

the light of the Blockburger test. The Court stated:

9. Tenn. Code Ann. § 39-4914 (Supp. 1978) provided:

Any person who employs any firearm of any character

as a means of committing or escaping from a felony is guilty

of a felony, and on conviction of first offense shall be

punished by imprisonment in the penitentiary for not less

than one (1) year nor more than five (5) years, and on

conviction of second offense shall be punished by imprison-

ment in the penitentiary for not less than five (5) years nor

more than ten (10) years. The trial judge may in his dis-

cretion suspend all or part of the penalty imposed by this

section.

The period of confinement imposed by this section shall

be in addition to any penalty provided y law as punish-

ment for any other felony and shall run consecutively, and

not concurrently, with any other period of confinement.

A26

To give a literal interpretation to the .. . phrase [“‘is

guilty of a felony”] results, of course, in the conclusion

that this statute creates and defines a new felony that

is separate and distinct from the “principal” felony

which is committed by means of a firearm. But such

a construction would result in a statute that could not

be applied as the legislature intended without running

afoul of the double jeopardy prohibitions of our state

and federal constitutions. Separate convictions for the

“principal” felony and the new use of a firearm felony

could not stand without violating the double jeopardy

clause.

Rene A Tenn. at ........, 562 S.W.2d at 418."

10. The Tennessee Supreme Court accordingly concluded

that the statute should be read not as creating a new felony but

as amending Tennessee’s other felony statutes by implication

through the addition of a sentence-enhancement provision. We

are prevented from similarly construing § 559.225, RSMo Supp.

1976 (§ 571.015, RSMo 1978) for two reasons. First, it is not

clear that the General Assembly had as its sole purpose in pass-

ing § 559.225 merely the enhancement of penalties. The statute

was clearly intended to create and define a separate crime (“‘is

also guilty of the crime of armed criminal action”) and to au-

thorize two convictions of one defendant for committing a felony

through the use of a dangerous and deadly weapon. The in-

ference that the General Assembly’s primary purpose was to

create and define a separate crime rather than to enhance

penalties for existing crimes is suggested by the fact that when

the new criminal code was enacted the armed criminal action

statute was placed in Chapter 571, under the title “‘Weapons

Offenses,” rather than in Chapter 558, under the title “Imprison-

ment”. In its effort to give effect to the legislative intent to

enhance punishment for felonies committed with firearms, the

Tennessee court sacrifices the legislative intent to create and

define a new crime. The double jeopardy clause does not re-

strict the legislature’s power to define crimes and fix punish-

ments.

[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 legis-

lature has acted courts may not impose more than one punish-

ment for the same offense and prosecutors ordinarily may

not attempt to secure that punishment in more than one trial.

(Continued on following page)

A27

In State v. Boudreau, 113 R.I. 497, 322 A.2d 626 (1974),

the defendant used a .22 calibre pistol to fire a series of

shots into the front of a house in which a married couple

and their six sons were sleeping. The defendant was con-

victed of eight counts of assault with a deadly weapon

and of committing a crime of violence while armed with

a pistol, a violation of R.I. Gen. Laws § 11-47-3 (1970).

A three-year sentence was imposed for the violent crime

charge and made to run concurrently with a three-year

sentence of one of the assault counts. “Crime of violence”

was defined in R.I. Gen. Laws § 11-47-2 (1970) as includ-

ing “murder, manslaughter, rape, mayhem, robbery bur-

glary, breaking and entering, assault with a dangerous

weapon, assault or battery involving grave bodily injury,

and/or assault with intent to commit any offense punish-

able as a felony.” 113 RI. at ........ , 322 A.2d at 629. The

Rhode Island Supreme Court quoted the Blockburger cri-

terion for what constitutes the “‘same offense,” and found

the two crimes charged to be essentially the same: “In

order to prove Boudreau guilty of the assault with a dan-

gerous weapon, it is necessary to prove the same elements

as are required to convict him on the charge of the com-

mission of a felony with the use of a firearm.” Id. Ac-

cordingly, the court affirmed the conviction of assault with

Footnote continued—

Brown v. Ohio, 432 U.S. 161, 165 (1977). It is not the creation

of a new crime that offends the double jeopardy guarantee: it

is the provision that a defendant be convicted and punished for

on Pina new crime and the underlying, included felony that

offends.

More importantly, we are not free to construe § 559.225 as

Hudson construed the Tennessee firearm-felony statute because

amendment of statutes by implication is forbidden by Missouri’s

Constitution. Mo. Const. art. III, § 28 prohibits the General As-

sembly from amending statutes without setting forth in full the

the statutes so amended. State v. Valentine, 584 S.W.2d 92 (Mo.

banc 1979) rejected the claim that § 559.225 violated Mo. Const.

art. III, § 28 on the ground that the statute does not amend the

punishment provisions of many other statutes but instead defines

“an offense separate and distinct from other offenses.” Id. at 96.

A28

a dangerous weapon and reversed the conviction of com-

mitting a crime of violence while armed with a pistol.

In State v. Whitton, 479 P.2d 302 (Alaska 1970), the

defendant was found guilty in one proceeding of robbery,

Alaska Stat. § 11.15.240 (1970), and of the use of a firearm

during the commission of the robbery, a violation of Alaska

Stat. 11.15.295 (1970). The Alaska Supreme Court, in-

terpreting the double jeopardy provision in Alaska’s own

Constitution to prohibit multiple prison sentences for the

same offense, held that the offense of robbery with fire-

arms “already proscribes and punishes” the offense of rob-

bery. Id. at 314. “The result is that the two separate stat-

utory crimes constitute the ‘same offense’ for purposes of

double jeopardy. A single sentence was all that could

properly be imposed under the double jeopardy provision

of our constitution.” Id.

Having determined that a conviction for both robbery

first degree and armed criminal action places a defendant

twice in jeopardy by multiplying the punishment for one

offense, we must consider the appropriate remedy."

The armed criminal action statute provides in three

separate subsections for sentences of not less than three

years for the first offense of armed criminal action, not less

than ten years for the third. § 559.225, RSMo Supp. 1976.

Each subsection contains the sentence: “The punishment

imposed pursuant to this subsection shall be in addition

11. After the Supreme Court, determined in Simpson v.

United States, 435 U.S. 6 (1978) that Congress did not intend that

both 18 U.S.C. §.924(c) and 18 U.S.C. § 2113(d) be available in

a prosecution arising out of a single incident of bank robbery

with firearms, four federal appellate court decisions have va-

cated the robbery with firearms conviction and sentence under

§ 924(c) where the defendant was convicted under both sections.

United States v. Vaughan, 598 F.2d 336, 337 (4th Cir. 1979);

United States v. Roach, 590 F.2d 181, 184 (5th Cir. 1979); United

States v. Stewart, 579 F.2d 356, 359-60 (5th Cir. 1978); and

United States v. Nelson, 574 F.2d 277, 283 (5th Cir. 1978).

A29

to any punishment provided by law for the crime com-

mitted by, with, or through the use, assistance, or aid of

a dangerous or deadly weapon.” Our determination that

the description of the offense of armed criminal action in-

cludes all of the elements of the underlying felony re-

quires that the statute be construed as if this sentence

were stricken from each subsection, since the double

jeopardy clause prohibits imposing punishment for both

armed criminal action and for the underlying felony.’”

We reverse appellant’s conviction and sentence for

armed criminal action, and affirm appellant’s convic-

tion for robbery first degree. It is so ordered.

WarREN D. WELLIVER, Judge

Bardgett, C.J., Seiler, Morgan, Higgins, JJ., concur; Rend-

len, J. dissents in separate dissenting opinion filed; Don-

nelly, J. dissents in separate dissenting opinion filed and

concurs in separate dissenting opinion of Rendlen, J.

DISSENTING OPINION

The principal opinion overrules State v. Treadway,

558 S.W.2d 646 (Mo. 1977). In Treadway this Court upheld

defendant’s conviction under § 560.120, RSMo 1969, the

then applicable first degree robbery statute, and a convic-

tion under § 559.225, RSMo Supp. 1976, the then applicable

armed criminal action statute. As stated in Treadway

12. In State v. Treadway, 558 S.W.2d 646, 653 (Mo. banc

1977), this Court construed the phrase “in addition to” to permit

the imposition of concurrent sentences for armed criminal action

and the underlying felony, and held that the trial court must

exercise its discretion whether to impose sentences consecutively

or concurrently. Since we have determined in this case that

the underlying felony, here robbery first degree, is a lesser in-

cluded offense of armed criminal action, the determination that

concurrent sentences may give effect to the legislative intent to

authorize one sentence “in addition to” another does not solve the

double jeopardy problem presented.

A30

at 652 “the two offenses do not overlap.” After pointing

out that first degree robbery (under § 560.120) requires

proof only of the taking of property by means of violence

or fear whereas armed criminal action requires the proof

of the use of a dangerous or deadly weapon during the

commission of a felony, the Court went on to state, p.

652, “The use of a weapon is not an element of first

degree robbery, although it may factually be part of the

transaction.” The Court then concluded, “Since the two

offenses are not the same in the law appellant’s double

jeopardy protection has not been abrogated.” Stated

otherwise the crime under § 560.120 includes the statutory

element of putting the victim in fear and the use of a

dangerous or deadly weapon is not a necessary part of

the crime. The fear may be produced by means other

than a dangerous and deadly weapon and thus a statutory

element occurs under § 560.120 which is separate and

distinct from and does not occur in § 559.225 (armed

criminal action). On the other hand, § 559.225 necessarily

contains an element, i.e., the use of a dangerous and deadly

weapon not included in § 560.120 and if the underyling

crime is robbery, that there be “fear induced by a danger-

ous and deadly weapon” and by no other means. This

then is another distinguishing element of § 559.225 not

present in § 560.120. In sum, each crime contains statu-

tory elements not included in the other and by the “Block-

burger test” discussed at length in the majority, the crimes

are separate and distinct and a prosecution for both is

not barred by double jeopardy considerations. To the

extent that the majority opinion holds otherwise and over-

rules our decision in Treadway I respectfully dissent.

ALBERT L. RENDLEN, Judge

A31

DISSENTING OPINION

The principal opinion treats the Per Curiam in Harris

v. Oklahoma, 433 U.S. 682 (1977) as decisive here.

In my view, we are not bound by general declarations

of law made by the United States Supreme Court. See

State v. Clark, ........ S.W.2d ........ Rca 2 (Mo. banc 1979)

(Donnelly, J., dissenting) (No. 60221, decided December

6, 1979).

Of course, in a given factual setting, when the United

States Supreme Court takes jurisdiction over the subject

matter and the parties, its adjudication is the law of the

case and its judgment is binding on this Court. But this

is not the situation here.

I respectfully dissent.

Rosert T. DONNELLY, Judge

A32

APPENDIX B

Section 560.120, RSMo 1969, reads as follows:

560.120. Robbery in first degree—Every person who

shall be convicted of feloniously taking the property of

another from his person, or in his presence, and against his

will, by violence to his person, or by putting him in fear

of some immediate injury to his person; or who shall be

convicted of feloniously taking the property of another

from the person of his wife, servant, clerk or agent, in

charge thereof, and against the will of such wife, servant,

clerk or agent by violence to the person of such wife, ser-

vant, clerk or agent, or by putting him or her in fear of

some immediate injury to his or her person, shall be

adjudged guilty of robbery in the first degree.

Section 560.135, RSMo 1975 Supp., reads as follows:

560.135. Armed robbery, punishment for.—Every per-

son convicted of robbery in the first degree by means of

a dangerous and deadly weapon and every person con-

victed of robbery in the first degree by any other means

shall be punished by imprisonment by the division of

corrections for not less than five years; every person con-

victed of robbery in the second degree shall be punished

by imprisonment by the division of corrections not exceed-

ing five nor less than three years; every person convicted

of robbery in the third degree shall be punished by im-

prisonment by the division of corrections not exceeding

five years.

Section 559.225, RSMo 1976 Supp., reads as follows:

559.225. Armed criminal action—penalty—exceptions.

—l. 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

A33

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 com-

mitted 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, proba-

tion, conditional release or suspended imposition or execu-

tion 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 sub-

section 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 wea-

pon. No person convicted under this subsection shall be

eligible for parole, probation, conditional release or sus-

pended imposition or execution of sentence for a period

of five calendar years.

3. Any person conyicted 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 pur-

suant to this subsection shall be in addition to any punish-

ment 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 subsec-

tion shall be eligible for parole, probation, conditional re-

lease 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.

A34

APPENDIX C

Section 750.529, M.C.L.A, reads as follows:

750.529. Armed robbery; aggravated assault—Any

person who shall assault another, and shall feloniously

rob, steal and take from his person, or in his presence, any

money or other property, which may be the subject of

larceny, such robber being armed with a dangerous weapon,

or any article used or fashioned in a manner to lead the

person so assaulted to reasonably believe it to be a dan-

gerous weapon, shall be guilty of a felony, punishable by

imprisonment in the state prison for life or for any term

of years. If an aggravated assault or serious injury is in-

flicted by any person while committing an armed robbery

as defined in this section, the sentence shall be not less

than 2 years’ imprisonment in the state prison. As amended

P.A. 1959, No. 71, § 1, Eff. March 19, 1960.

Michigan Compiled Laws Annotated, 750.227b, reads

as follows:

Michigan Compiled Laws Annotated, 750.227b. Pos-

session at time of commission or attempted commission of

felony; additional sentence, punishment—

“Sec. 227b (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

nA cs BA ai

A35

the conviction of the felony or the attempt to commit the

felony, and shall be served consecutively with and pre-

ceding any term of imprisonment imposed for the convic-

tion 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). P.A. 1931, No. 328, § 227b,

added to P.A. 1976. No. 6, § 1, Eff. Jan. 1, 1977.” [Footnote

omitted. |

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.