Anderson v. State

629 S.W.2d 421, 1981 Mo. App. LEXIS 3815

• Court: Missouri Court of Appeals
• Decided: September 29, 1981
• Docket: No. 43973
• Status: Published

Opinion

GUNN, Judge.

This ease is another among the flurry of appeals involving the impact of Sours v. State, 593 S.W.2d 208 (Mo. banc), (Sours I), vacated, 446 U.S. 962, 100 S.Ct. 2935, 64 L.Ed.2d 820, on remand, 603 S.W.2d 592 (Mo. banc 1980), (Sours II), cert. denied, 449 U.S. 1131, 101 S.Ct. 953, 67 L.Ed.2d 118 (1981). Defendant filed his Rule 27.26 motion challenging, inter alia, his armed criminal action convictions. § 559.225, RSMo. Supp.1976.

Defendant had pleaded guilty to two counts of first degree robbery and two counts of armed criminal action, with sentences on the latter concurrent with those imposed for robbery. Following a hearing, the trial court sustained that portion of the motion relating to the convictions for armed criminal action, finding a double jeopardy violation based on Sours I. The state has appealed urging that Albernaz v. United States, 450 U.S. 333, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981), and other United States Supreme Court decisions hold that a legislature may properly enact legislation to impose separate punishment for separate crimes, albeit the crimes arise out of the same facts. But Sours I and II specifically hold that convictions and sentences for armed criminal action and first degree robbery cannot co-exist as being a double jeopardy violation. The Sours cases have been examined in the light of Albernaz and reaffirmed in State v. Haggard, 619 S.W.2d 44 (Mo. banc 1981).¹ We comply with the clear dictate of the Missouri Supreme Court and affirm the trial court’s ruling which reverses the defendant’s armed criminal action convictions. State v. Harris, 622 S.W.2d 330 (Mo.App.1981); State ex rel. Westfall v. Crowder, 621 S.W.2d 717 (Mo.App.1981).

Judgment affirmed.

CRIST, P. J., and REINHARD and SNYDER, JJ., concur.

1 . The same principle regarding armed criminal action has been extended to felonies other than first degree robbery: State v. McGee, 619 S.W.2d 70 (Mo. banc 1981); State v. Sinclair, 619 S.W.2d 73 (Mo. banc 1981); State v. (Donald) Greer, 619 S.W.2d 65 (Mo. banc 1981); State v. (Eddie) Greer, 619 S.W.2d 62 (Mo. banc 1981).