603 S.W.2d 592 (Mo.banc. 1980), 61458, Sours v. State

Docket Nº:61458.
Citation:603 S.W.2d 592
Party Name:William Scott SOURS, Appellant, v. STATE of Missouri, Respondent.
Case Date:August 18, 1980
Court:Supreme Court of Missouri
 
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Page 592

603 S.W.2d 592 (Mo.banc. 1980)

William Scott SOURS, Appellant,

v.

STATE of Missouri, Respondent.

No. 61458.

Supreme Court of Missouri, En Banc.

Aug. 18, 1980

Page 593

David Robards, Public Defender, Joplin, for appellant.

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

WELLIVER, Judge.

Appellant, William Scott Sours, pleaded guilty to two counts of an information filed June 20, 1977. Count I charged appellant with first degree robbery, s 560.120, RSMo 1969, and s 560.135, RSMo Supp.1975; Count II charged armed criminal action, s 559.225, RSMo Supp.1976 (now s 571.015, RSMo 1978). A separate punishment was imposed for each count. Appellant sought relief from his convictions in a collateral proceeding under Rule 27.26. In Sours v. State, Mo., 593 S.W.2d 208 (1980), we reversed the judgment of the trial court insofar as it denied appellant relief from his conviction for armed criminal action, and vacated and set aside that conviction on the ground that the conviction placed appellant twice in jeopardy for the same offense. We affirmed the judgment insofar as it denied appellant relief from his conviction for robbery first degree. The United States Supreme Court vacated our decision and remanded the case for reconsideration in the light of Whalen v. United States, 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980). Missouri v. Sours, 446 U.S. 962, 100 S.Ct. 2935, 64 L.Ed.2d 820. The detailed facts and prior procedural history of this case may be found in this Court's earlier opinion, 593 S.W.2d at 210.

The United States Supreme Court has never decided whether imposing separate punishments in a single proceeding both for the offense of committing a felony by means of a dangerous and deadly weapon and for the commission of the felony violates the double jeopardy clause of the federal Constitution. The Court expressly declined to rule on this issue in Simpson v. United States, 435 U.S. 6, 98 S.Ct. 909, 55 L.Ed.2d 70 (1978). Cf. Whalen v. United States, 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980). Each time a similar double jeopardy question has been before the United States Supreme Court, it has found it unnecessary to address the constitutional question, because it has been able to find that the legislature did not intend to separately punish the two offenses involved. Whalen v. United States, 445 U.S. 684, 100 S.Ct. 1432, 1435 (1980); Simpson v. United States, 435 U.S. 6, 11, 98 S.Ct. 909, 912, 55 L.Ed.2d 70 (1978); Iannelli v. United States, 420 U.S. 770, 785-86 nn. 17-18, 95 S.Ct. 1284, 43 L.Ed.2d 616 (1975). See Jeffers v. United States, 432 U.S. 137, 155, 97 S.Ct. 2207, 53 L.Ed.2d 168 (1977). No United States Supreme Court opinion has considered a statute that contained wording similar to or identical to that found in Missouri's armed criminal action statute.

In Whalen, the defendant was convicted of rape, D.C.Code Ann. s 22-2801, and of felony-murder, i. e., the killing of the rape victim in the course of the rape, D.C.Code

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Ann. s 22-2401. He was sentenced to consecutive terms of imprisonment of 20 years to life for first degree murder, and of 15 years to life for rape. The District of Columbia Court of Appeals affirmed, 379 A.2d 1152. The United States Supreme Court reversed, holding that under D.C.Code Ann. s 23-112, 1 Congress did not intend that multiple punishments be imposed for two offenses arising out of the same criminal transaction unless each offense requires proof of a fact which the other does not. The Court stated that

Congress did not authorize consecutive sentences for rape and for a killing committed in the course of the rape, since it is plainly not the case that "each provision requires proof of a fact which the other does not." A conviction for killing in the course of a rape cannot be had without proving all the elements of the offense of rape. See United States v. Greene, 160 U.S.App.D.C. 21, 489 F.2d 1145, 1158 (1973). Cf. Harris v. Oklahoma, 433 U.S. 682, 682-683, 97 S.Ct. 2912, 2913, 53 L.Ed.2d 1054 (1977).

445 U.S. at 693, 100 S.Ct. at 1439. The Court expressly reserved the question whether, had Congress clearly intended to impose multiple punishments for the same offense, the imposition of such punishment would violate the double jeopardy clause. Before holding that the Court would decide the question of statutory interpretation without deferring to the interpretation of the District of Columbia Court of Appeals, the Court carefully distinguished the question of statutory interpretation from the constitutional question. The Court stated that, if the matter of whether it must defer to the construction given D.C.Code Ann. ss 22-2801 and 22-2401 by the District of Columbia Court of Appeals were absent, "we would as a matter of course first decide the petitioner's statutory claim, and, only if that claim were rejected, would we reach the constitutional issue. See Simpson v. United States, 435 U.S. 6, 11-12, 98 S.Ct. 909, 912, 55 L.Ed.2d 70." 445 U.S. at 687, 100 S.Ct. at 1435. Accordingly, since the Court did not reject the petitioner's statutory claim, it did not reach the constitutional issue presented. 2

Mr. Justice Blackmun, concurring in the judgment in Whalen (Mr. Justice White filed an opinion concurring in part and concurring in the judgment and Mr. Justice Rehnquist filed a dissenting opinion in which Mr. Chief Justice Burger joined) stated that prior cases had wrongly suggested:

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that the Double Jeopardy Clause may prevent the imposition of cumulative punishments in situations in which the Legislative Branch clearly intended that multiple penalties be imposed for a single criminal transaction. See Simpson v. United States, 435 U.S. 6, 11-13, 98 S.Ct. 909, 912, 55 L.Ed.2d 70 (1978); Jeffers v. United States, 432 U.S. 137, 155, 97 S.Ct. 2207, 2218, 53 L.Ed.2d 168 (1977) (plurality opinion). I believe that the Court should take the opportunity presented by this case to repudiate those dicta squarely, and to hold clearly that the question of what punishments are constitutionally permissible is not different from the question of what punishments the Legislative Branch intended to be imposed. I must concede that the dicta that seemingly support a contrary view have caused confusion among state courts that have attempted to decipher our pronouncements concerning the Double Jeopardy Clause's role in the area of multiple punishments.

445 U.S. at 697, 100 S.Ct. at 1441. Clearly, the five justices who joined in the opinion of the Court in Whalen (Justices Stewart, Powell, Stevens, Brennan, and Marshall) declined Justice Blackmun's invitation to hold that the question of what punishments are constitutionally permissible can be reduced to the question of what punishment the legislature intended to be imposed. The two questions remain distinct. 3 The opinion of the Court in Whalen cited Simpson with approval for its separation of the statutory claim from the constitutional issue and for its avoidance of the constitutional issue by finding that the legislature did not intend multiple punishments. 445 U.S. at 686, 100 S.Ct. at 1435.

Our original opinion discussed in detail two recent United States Supreme Court cases in which the question whether the legislature intended to subject the defendant to multiple penalties for a single criminal transaction was carefully distinguished from the question whether cumulative punishments for the two offenses are constitutionally permissible. Simpson v. United States, 435 U.S. 6, 11, 98 S.Ct. 909, 912, 55 L.Ed.2d 70 (1978); Jeffers v. United States, 432 U.S. 137, 155, 97 S.Ct. 2207, 53 L.Ed.2d 168 (1977) (plurality opinion). See Sours v. State, 593 S.W.2d 208, 214-16 (Mo.1980).

The decision of the United States Supreme Court to vacate the original judgment of this Court and to remand this case "for further consideration in light of Whalen v. United States, 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980)," mandates that we reexamine the intent of the General Assembly in enacting s 559.225, RSMo Supp.1976. In Whalen, the Court determined that Congress did not intend to punish the petitioner both for committing rape and for committing a killing in the course of the rape. In reaching this conclusion, the Court applied to D.C.Code Ann. s 23-112 the doctrine of Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932) as "a rule of statutory construction." 445 U.S. at 691, 100 S.Ct. at 1438. In Blockburger, the Court held that "(t)he applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not." 284 U.S. at 304, 52 S.Ct. at 182. The Blockburger rule has often been cited by the Court. At times it has been presented

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as a rule of statutory construction, but more often it has been used as the definition of "same offense" for double jeopardy purposes. 4

Whalen v. United States, 445 U.S. at 692, 100 S.Ct. at 1438 (1980);

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Simpson v. United States, 435 U.S. 6, 11, 98 S.Ct. 909, 912, 55 L.Ed.2d 70 (1978); Brown v. Ohio, 432 U.S. 161, 166, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187 (1977); Jeffers v. United States, 432 U.S. 137, 151, 97 S.Ct. 2207, 2216, 53 L.Ed.2d 168 (1977) (plurality opinion) (see opinion of White, J., concurring in part and dissenting in part, at 158, 97 S.Ct. at 2220); Iannelli v. United States, 420 U.S. 770, 785 n. 17, 95 S.Ct. 1284, 1293 n. 17, 43 L.Ed.2d 616 (1975).

In Whalen, the Court stated that the Blockburger rule had been consistently relied on ever since it was first stated in 1932:

to determine whether Congress has in a given situation provided that two statutory offenses may be punished cumulatively. The assumption underlying...

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