State ex rel. Millett v. Walsh

525 S.W.2d 86, 1975 Mo. LEXIS 383

Opinion

PER CURIAM.

This is an original proceeding in mandamus.

Relator is charged in a two-count information with two offenses of first degree robbery by means of a dangerous and deadly weapon. He filed a motion in the trial court for separate trials of the two charges, stating as grounds that to try and convict him of both offenses in one trial would subject him to mandatory imposition of consecutive sentences under § 546.480, RSMo 1969, V.A.M.S., and thus deny him the right to have the trial judge exercise his discretion on whether the sentences should be concurrent or consecutive, all in violation of the equal protection clause of the Fourteenth Amendment to the United States Constitution. His motion was overruled but on his petition this court issued its alternative writ..

Relator’s contention in this proceeding is the same as that stated as grounds in support of his motion for separate trials of the two charges. A like position of an appellant was upheld by this court in State v. Baker, 524 S.W.2d 122 (banc — decided June 9, 1975), in which § 546.480 was declared unconstitutional. The result is that a trial judge may now exercise his discretion as to whether, upon conviction of an accused of two or more offenses in one trial, the sentences to be imposed should be concurrent or consecutive. Hence, the reasons asserted by relator for making our alternative writ peremp tory no longer have force and the writ issued should be quashed.

Accordingly, the alternative writ of mandamus is quashed.

All concur.