State v. Anderson

641 S.W.2d 193, 1982 Mo. App. LEXIS 3716

Opinion

CLEMENS, Senior Judge.

This appeal from a stealing conviction is another challenge to the range of punish ment instruction, MAI-CR2d 2.60. This because the instruction told the jury the term of imprisonment to be fixed by the court would “not exceed the term assessed and declared by the jury”.

The jury had found defendant guilty of stealing and assessed punishment at one year in jail. The trial court sentenced him as an admitted double felon to five years in prison.

Defendant’s contention is refuted by State v. VanHorn, 625 S.W.2d 874[7-9] (Mo.1981) where the court denied the same challenge, declaring: “(t)he option to impose a sentence of imprisonment in the county jail lies only with the court and not with the jury, notwithstanding the language contained in MAI-CR2d 24.20.4. Therefore, the jury could not have ‘assessed a term in the county jail,’ or if it purported to do so, at most it would have been a nonbinding recommendation.”

VanHorn was followed in State v. Bradford, 627 S.W.2d 281[3] (Mo.1982), the court declaring: “A jury verdict assessing a fine would have been advisory and not binding on the court.”

Affirmed.

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