Brown v. State

629 S.W.2d 420, 1981 Mo. App. LEXIS 3816

• Court: Missouri Court of Appeals
• Decided: September 29, 1981
• Docket: No. 43845
• Status: Published

Opinion

SNYDER, Judge.

The state appeals from the trial court’s judgment which granted, on double jeopardy grounds, a Rule 27.26 motion to vacate a conviction and sentence for armed criminal action. Movant had plead guilty to charges of first degree robbery and armed criminal action, both offenses having arisen out of the same occurrence.

The state charges the trial court erred in vacating the movant’s conviction of armed criminal action because decisions of the United States Supreme Court would allow a finding that movant’s conviction of both first degree robbery and armed criminal action, arising out of the same occurrence, did not place movant in double jeopardy in violation of his rights under the Fifth Amendment to the United States Constitution. The trial court ruled properly in vacating the conviction. The judgment is affirmed.

After consideration of the United States Supreme Court decisions, the Missouri Supreme Court has ruled again that convictions of first degree robbery, § 560.120, RSMo 1969,¹ and armed criminal action, § 559.225, RSMo Supp. 1976,² arising out of the same set of facts, violate the constitutional prohibition against placing an accused twice in jeopardy. The latest ruling is in State v. Haggard, 619 S.W.2d 44 (Mo. banc 1981).³ This court must follow the supreme court’s ruling.

The judgment is affirmed.

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

1 . Now § 569.020, RSMo 1978.

2 . Now § 571.015, RSMo 1978.

3 . State v. Haggard, 619 S.W.2d 44 (Mo. banc 1981) confirms the earlier rulings in Sours I and II. 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).