593 S.W.2d 208 (Mo. 1980), 61458, Sours v. State

Docket Nº:61458.
Citation:593 S.W.2d 208
Party Name:William Scott SOURS, Appellant, v. STATE of Missouri, Respondent.
Case Date:January 15, 1980
Court:Supreme Court of Missouri

Page 208

593 S.W.2d 208 (Mo. 1980)

William Scott SOURS, Appellant,


STATE of Missouri, Respondent.

No. 61458.

Supreme Court of Missouri, En Banc.

January 15, 1980

Rehearing Denied Feb. 11, 1980.

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David Robards, Public Defender, Joplin, for appellant.

John Ashcroft, Atty. Gen., Steven W. Garrett, Asst. Atty. Gen., Jefferson City, for respondent.


This is an appeal from the denial after hearing of appellant's Rule 27.26 motion to set aside convictions entered October 4, 1977. Appellant seeks relief from convictions based on pleas of guilty to an information in two counts charging robbery first degree by means of a dangerous and deadly weapon, § 560.120, RSMo 1969 and § 560.135, RSMo Supp.1975 (now § 569.020.1(2), RSMo 1978), and armed criminal action, § 559.225, RSMo Supp.1976 (now § 571.015, RSMo 1978). Appellant contends that convictions for both crimes based on one incident violates his constitutional right against being twice placed in jeopardy. Jurisdiction is in this Court because the case involves the constitutionality of a statute of this state. Mo.Const. art. V, § 3.

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On May 14, 1977, appellant accompanied Charles Mahan into a fast-food store named Mr. Quick, where Mahan, armed with a pistol, took $949.06 from the store's clerk, Kendall Carnes. Mahan was charged with armed robbery and pleaded guilty, receiving a sentence of five years in the Department of Corrections. In an information filed June 20, 1977, appellant was charged with both armed robbery and armed criminal action. On October 5, 1977, appellant pleaded guilty to both counts. On January 5, 1978, appellant was sentenced to five years imprisonment on the robbery conviction and three years imprisonment on the armed criminal action conviction, the sentences to run consecutively.

On September 21, 1978, appellant filed a motion to vacate the convictions and sentences, alleging that his attorney rendered ineffective assistance; that the plea was coerced by the threat of the use of allegedly false testimony to be given by Charles Mahan; and that the conviction for both first degree armed robbery and armed criminal action placed him in double jeopardy. On April 3, 1979, appellant by appointed counsel filed an amended motion alleging that the conviction for both offenses violated appellant's constitutional right to be free from double jeopardy; that the consecutive sentences should be vacated because it is not mandatory for a sentence under the armed criminal action statute to run consecutively with the sentence for the underlying felony; that the trial court did not properly advise the appellant as to the range of punishment for the crimes with which he was charged; that the trial court failed to obtain an adequate factual basis before accepting appellant's guilty pleas; and, that the sequence in which the appellant was to serve the two sentences should be reversed so as to permit him his statutory opportunity to be released on parole.

In a hearing held April 16, 1979, appellant and his attorney withdrew all of the allegations contained in the amended motion except the claim based on double jeopardy and that based on the court's alleged erroneous assumption that the armed criminal action statute required consecutive sentencing. In this hearing, appellant and respondent stipulated that both of the charges filed against appellant arose from the same occurrence, and that there was only one robbery involved.

On April 19, 1979, the court sustained the part of the motion that was based on the court's erroneous assumption that it could not make the armed criminal action sentence run concurrently with the robbery sentence. As a correction of the sentence entered January 5, 1978, the court resentenced appellant to five years on the robbery charge and three years on the armed criminal action charge, the sentences to run concurrently. Also on April 19, 1979, the court denied the part of the motion that was based on the claim of double jeopardy. On June 5, 1979, appellant filed with the circuit court his notice of appeal to this Court.

We are not here presented with a case involving multiple prosecutions for the same offense. The only question presented in this appeal is whether it constitutes double jeopardy to charge and convict a defendant in a single prosecution with both first degree robbery by means of a dangerous and deadly weapon and armed criminal action arising out of the same incident. We find that armed criminal action and the underlying felony, in this case robbery first degree are the "same offense" for double jeopardy purposes. We reverse the judgment of the trial court insofar as it denied appellant relief from his conviction for armed criminal action; we affirm the judgment of the trial court insofar as it denied appellant relief from his conviction for robbery first degree. To the extent that our decisions in State v. Valentine, 584 S.W.2d 92 (Mo. banc 1979) and State v. Treadway, 558 S.W.2d 646 (Mo. banc 1977), Cert. denied, 439 U.S. 838, 99 S.Ct. 124, 58 L.Ed.2d 135 (1978) are inconsistent with this opinion, we disapprove those cases.

Analysis begins with the double jeopardy provision in the Missouri Constitution, Mo.Const. art. I, § 19 prohibits the state from placing a person "again in jeopardy

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of life or liberty for the same offense, after being once acquitted by a jury." This language has been interpreted to apply "only where there has been an acquittal of the defendant by a jury." Murray v. State, 475 S.W.2d 67, 70 (Mo.1972); Kansas City v. Henderson, 468 S.W.2d 48, 52 (Mo.1971), Cert. denied, 404 U.S. 1004, 92 S.Ct. 570, 30 L.Ed.2d 557 (1971). Since the convictions from which appellant seeks relief were obtained in a single prosecution, Mo.Const. art. I, § 19 does not apply in this case.

While the double jeopardy provision in the Missouri Constitution does not resolve the issue presented, Benton v. Maryland, 395 U.S. 784, 793-96, 89 S.Ct. 2056, 2063, 23 L.Ed.2d 707 (1969) has held that the double jeopardy clause of the fifth amendment to the United States Constitution does apply to the states through the fourteenth amendment, because it is "fundamental to the American scheme of justice." The fifth amendment provides: "(N)or shall any person be subject for the same offense to be twice put in jeopardy of life or limb." This provision prohibits not only multiple prosecutions but also multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), decided the same day as Benton, stated that the guarantee against double jeopardy

has been said to consist of three separate constitutional protections. It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.

Id. at 717, 89 S.Ct. at 2076; Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977); State v. Parsons, 513 S.W.2d 430, 438 (Mo.1974). The Court in Pearce quoted at length from "the landmark case" of Ex parte Lange, 85 U.S. (18 Wall.) 163, 21 L.Ed. 872 (1874) as providing "the controlling constitutional principle." 395 U.S. at 717, 89 S.Ct. 2072. The protection against multiple punishments was established in Lange in the following language:

For of what avail is the constitutional protection against more than one trial if there can be any number of sentences pronounced on the same verdict? Why is it that, having once been tried and found guilty, he can never be tried again for that offence? Manifestly it is not the danger or jeopardy of being a second time found guilty. It is the punishment that would legally follow the second conviction which is the real danger guarded against by the Constitution. But if, after judgment has been rendered on the conviction, and the sentence of that judgment executed on the criminal, he can be again sentenced on that conviction to another and different punishment, or to endure the same punishment a second time, is the constitutional restriction of any value? Is not its intent and its spirit in such a case as much violated as if a new trial had been had, and on a second conviction, a second punishment inflicted?

The argument seems to us irresistible, and we do not doubt that the Constitution was designed as much to prevent the criminal from being twice punished for the same offence as from being twice tried for it.

85 U.S. (18 Wall.) at 173. The principle that the double jeopardy clause prohibits double punishments for the same offense has been reaffirmed in subsequent decisions of the United States Supreme Court in Simpson v. United States, 435 U.S. 6, 11 n. 5, 98 S.Ct. 909, 55 L.Ed.2d 70 (1978); Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977); Jeffers v. United States, 432 U.S. 137, 97 S.Ct. 2207, 53 L.Ed.2d 168 (1977) (plurality opinion, at 1.5, 97 S.Ct. at 2218; opinion of Stevens, J., concurring in part and dissenting in part at 159 n. 5, 97 S.Ct. at 2220 n. 5); and Iannelli v. United States, 420 U.S. 770, 786 n. 18, 95 S.Ct. 1284, 43 L.Ed.2d 616 (1975).

On more than one occasion, this Court has held that "where in law and in fact there is only one crime," the protection of the double jeopardy clause against multiple punishments for the same offense forbids convicting and punishing a defendant for two offenses in one proceeding. State v. Parsons,

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513 S.W.2d 430 (Mo.1974). Accord, State v. Neal, 514 S.W.2d 544 (Mo. banc 1974). Cf. State v. Richardson, 460 S.W.2d 537 (Mo. banc 1970).

In State v. Parsons, 513 S.W.2d 430 (Mo.1974), the defendant was convicted in one proceeding of first degree murder of his wife by bombing (Count I), and of putting a person in danger of...

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