State v. Russ

647 S.W.2d 579, 1983 Mo. App. LEXIS 3836

Opinion

KAROHL, Judge.

Appellant was convicted in the Circuit Court of the City of St. Louis of robbery in the first degree, and armed criminal action, § 559.225 RSMo Supp.1976, now § 571.015 RSMo 1978, and was sentenced to consecutive terms of five years imprisonment for robbery and five years imprisonment for armed criminal action.

The only issue before this court is that the trial court erred in failing to dismiss the armed criminal action charge as it was the “same offense” as the robbery first degree charge under the Fifth Amendment’s Double Jeopardy Clause.

The issue was recently disposed of by the United States Supreme Court in Missouri v. Hunter,-U.S.-,-, 103 S.Ct. 673, 679, 74 L.Ed.2d 535 (1983)¹ where the Court specifically held:

Where, as here, a legislature specifically authorizes cumulative punishment under two statutes, regardless of whether those two statutes prescribe the “same” conduct under Blockburger [Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932) ], a court’s task of statutory construction is at an end and the prosecutor may seek and the trial court or jury may impose cumulative punishment under such statutes in a single trial.

The Court concluded that a consecutive sentence is not prohibited by the Double Jeopardy Clause where the legislature has made its intent crystal clear.

As mandated by Hunter, we affirm the armed criminal action conviction and sentence.

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

1 . For the Missouri opinion, see State v. Hunter, 622 S.W.2d 374 (Mo.App.1981).