State v. Kane
| Decision Date | 09 March 1982 |
| Docket Number | No. 63324,63324 |
| Parties | STATE of Missouri, Respondent, v. Anthony J. KANE, Appellant. |
| Court | Missouri Supreme Court |
James W. Fletcher, Public Defender, Gary L. Gardner, Asst. Public Defender, Kansas City, for appellant.
John Ashcroft, Atty. Gen., Jefferson City, Catheryn B. Starke, Asst. Atty. Gen., Kansas City, Steven W. Garrett, Asst. Atty. Gen., Jefferson City, for respondent.
ON TRANSFER FROM THE COURT OF APPEALS
Appellant-defendant appealed to the Missouri Court of Appeals, Western District, from a conviction by jury of robbery in the second degree and armed criminal action. The jury assessed punishment at seven years on the robbery and thirty-five years on the armed criminal action.
The court of appeals affirmed the robbery conviction under Count I and reversed the armed criminal action conviction under Count II.
Because of the general reluctance of courts to reverse the longer sentence and for reason that the Court of Appeals believed this Court had never clearly enunciated its rationale for reversing the armed criminal action conviction as opposed to the underlying felony either in or following our original opinion in Sours v. State, (Sours I), 593 S.W.2d 208, (Mo. banc 1980), and, because of the general interest in this matter, the court of appeals, after opinion, transferred the case to this Court. Rule 83.02.
While this Court has made no effort to statistically document the length of sentences imposed by juries in Sours -type cases, our general observation has been that something in excess of ninety-five percent of the cases the much longer sentence has been assessed on the "underlying felony" (robbery) and the shorter sentence on the armed criminal action. We interpret this to mean that juries believed that they were enhancing the longer sentence for the basic underlying crime by the assessment of the penalty on the armed criminal action charge.
In Sours I, we briefly alluded to the fact that in the armed criminal action section, then § 559.225, RSMo Supp.1976, "Each subsection contains the sentence: 'The punishment imposed pursuant to this subsection shall be in addition to any punishment provided by law for the crime committed by, with, or through the use, assistance, or aid of a dangerous or deadly weapon.' " 593 S.W.2d 208, 222-23. We then reversed the conviction for armed criminal action. Clearly the quoted language in its usual and customary meaning was the language of enhancement, even though the 1976 reenactment of the statute had converted the statute from an enhancement statute to a statute constituting a separate crime. Laws of Mo.1976, p. 780 (C.C.S.H.B. 1231, 997, 1024, 1116, 1332, & 1346).
It may be helpful to review the pre-Sours history of the armed criminal action statute. It was first passed in 1927:
(S.B. 214.)
CRIMES AND PUNISHMENT: Providing Penalty for Commission of Felony While Armed and Increasing Penalty for Each Subsequent Felony Committed.
AN ACT to provide a penalty for the commission of a felony while armed with a pistol or any deadly weapon or instrument and to provide an increased penalty for each subsequent felony committed while so armed and providing for the repeal of all acts and parts of acts inconsistent with this act.
1. Providing for increased 2. Repealing inconsistent
penalty for committing acts.
felony while armed with
pistol or deadly weapon.
Be it enacted by the General Assembly of the State of Missouri, as follows :
Section 1. Providing for increased penalty for committing felony while armed with pistol or deadly weapon.-If any person shall be convicted of committing a felony, or attempting to commit a felony, while armed with a pistol or any deadly weapon the punishment elsewhere prescribed for said offense in the statutes and laws of the state of Missouri for the felony of which he is convicted shall be increased by the trial judge by imprisonment in the state penitentiary for two years. Upon a second conviction for a felony so committed such period of imprisonment shall be increased by fifteen years. Upon a fourth or subsequent conviction for a felony so committed the person so convicted shall be imprisoned for life.
Sec. 2. Repealing inconsistent acts.-All acts and parts of acts inconsistent with this act are hereby repealed.
Approved April 6, 1927.
The statute so remained on our books as an enhancement statute from that time until 1976, at which time it was by legislative reenactment converted into a statute constituting a separate and distinct crime:
AN ACT to repeal section 556.140, RSMo 1969, relating to the commission of certain crimes with certain weapons, and to enact in lieu thereof one new section relating to the same subject, with penalty provisions.
Be it enacted by the General Assembly of the State of Missouri, as follows :
Section A. Enacting clause.-Section 556.140, RSMo 1969 is repealed and one new section enacted in lieu thereof, to be known as section 1, to read as follows:
Section 1. Armed criminal action-penalty-exceptions.-1. Except as provided in subsection 4 of this section, any person who commits any felony under the laws of this state by, with, or through the use, assistance, or aid of a dangerous or deadly weapon is also guilty of the crime of armed criminal action and, upon conviction, shall be punished by imprisonment by the division of corrections for a term of not less than three years. The punishment imposed pursuant to this subsection shall be in addition to any punishment provided by law for the crime committed by, with, or through the use, assistance, or aid of a dangerous or deadly weapon. No person convicted under this subsection shall be eligible for parole, probation, conditional release or suspended imposition or execution of sentence for a period of three calendar years.
2. Any person convicted of a second offense of armed criminal action shall be punished by imprisonment by the division of corrections for a term of not less than five years. The punishment imposed pursuant to this subsection shall be in addition to any punishment provided by law for the crime committed by, with, or through the use, assistance, or aid of a dangerous or deadly weapon. No person convicted under this subsection shall be eligible for parole, probation, conditional release or suspended imposition or execution of sentence for a period of five calendar years.
3. Any person convicted of a third or subsequent offense of armed criminal action shall be punished by imprisonment by the division of corrections for a term of not less than ten years. The punishment imposed pursuant to this subsection shall be in addition to any punishment provided by law for the crime committed by, with, or through the use, assistance, or aid of a dangerous or deadly weapon. No person convicted under this subsection shall be eligible for parole, probation, conditional release or suspended imposition or execution of sentence for a period of ten calendar years.
4. The provisions of this section shall not apply to the felonies defined in sections 559.005, 564.590, 564.610, 564.620, 564.630, and 564.640, RSMo.
Approved June 24, 1976.
Laws of Mo.1976, p. 780, now § 571.015, RSMo 1978.
In order that we may more clearly understand the enhancement aspects of our own armed criminal action (felony firearm) statute, it may be helpful to examine the history of similar statutes from all of the states.
At least twenty states have enacted enhanced punishment statutes. Some require that so many years be added to a sentence for the felony or that so many years of the sentence must be served prior to parole or probation. In addition to Missouri, at least twelve other states have statutes declaring the use of a firearm during a felony to be a separate offense requiring imposition of a separate punishment.
The validity of enhancement statutes is clear. As stated in State v. Foster, 91 Wash.2d 466, 589 P.2d 789, 797 (1979), "We are aware of no authority which supports appellant's claim of double jeopardy for this type of enhanced penalty scheme." Quoted also in State v. Davison, 614 P.2d 489, 498 (Mont.1980). See also State v. Reese, 625 S.W.2d 130 (Mo. banc 1981). Other claims challenging the validity of this type of statute have also been rejected. State v. Warner, 52 Or.App. 987, 630 P.2d 385 (1981); People v. Childs, 610 P.2d 101 (Colo.1980); State v. Holmes, 276 N.W.2d 823 (Iowa 1979); State v. Frye, 390 A.2d 520 (Me.1978); State v. Gabaldon, 92 N.M. 230, 585 P.2d 1352 (N.M.App.1978); State v. Freeman, 233 Kan. 362, 574 P.2d 950 (1978); People v. Bush, 123 Cal.Rptr. 576, 50 Cal.App.3rd 168 (1975); Woofter v. O'Donnell, 91 Nev. 756, 542 P.2d 1396 (1975). In December of 1981, our own Court unanimously recognized the validity of enhancement statutes in a case dealing with our dangerous offender statute saying, "It is an enhancement statute and does not violate the constitutional guarantee against multiple punishment." State v. Reese, 625 S.W.2d 130 (Mo. banc 1981).
One court has limited the application of the enhancement statutes to those felonies in which the use of a firearm is not an element of the crime. State v. Workman, 90 Wash.2d 443, 584 P.2d 382 (1978). However, the rationale for this decision was that the legislature did not intend for the enhancement statute to apply in such a case. In fact several statutes in other states specifically state that the enhancement statute does not apply where the use of a firearm is an essential element of the offense for which the defendant is convicted. Sections 12022 et seq. Cal.Penal Code (West Supp. 1968); tit. 17-A, § 1252 Me.Rev.Stat.Ann. (West 1981); chap. 265, § 18B Mass.Ann.Laws (LCP 1980); §...
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