Opinion
No. 63230.
July 14, 1981. Rehearing Denied July 29, 1981.
APPEAL FROM THE CIRCUIT COURT OF MONTGOMERY COUNTY; EDWARD D. HODGE, JUDGE.
Darryl L. Hicks, Warrenton, for appellant.
John Ashcroft, Atty, Gen., Donna Bowles, Asst. Atty. Gen., Jefferson City, for respondent.
Reexamination on order of the United States Supreme Court
This case together with several others was ordered reexamined in light of Albernaz v. United States, 450 U.S. 333, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981). Since all of the courts of appeals rulings were based upon our ruling in Sours v. State, 593 S.W.2d 208 (Mo. banc 1980) (Sours I) or Sours v. State, 603 S.W.2d 592 (Mo. banc 1980) (Sours II), the cases were all ordered transferred to this Court. Our examination of the double jeopardy issue made in light of Albernaz pursuant to the orders of the United States Supreme Court, appears in State v. Haggard, 619 S.W.2d 44 (Mo. banc No. 62227), decided July 14, 1981.
See State v. Counselman, 603 S.W.2d 3 (Mo. App. 1980); State v. McGee, 602 S.W.2d 709 (Mo.App. 1980); State v. Payne, 607 S.W.2d 822 (Mo.App. 1980); State v. White, 610 S.W.2d 646 (Mo.App. 1980); State v. (Johnny) Williams, 610 S.W.2d 644 (Mo.App. 1980), all of which were vacated and remanded to the Court of Appeals, Eastern District, in Missouri v. Counselman, ___ U.S. ___, 101 S.Ct. 1690, 68 L.Ed.2d 190 (1981). See Brown v. State, 607 S.W.2d 801 (Mo.App. 1980); State v. Collins, 607 S.W.2d 781 (Mo.App. 1980); State v. Hawkins, 608 S.W.2d 496 (Mo.App. 1980); State v. (Eddie) Greer, 609 S.W.2d 423 (Mo.App. 1980); State v. Martin, 610 S.W.2d 18 (Mo.App. 1980), all of which were vacated and remanded to the Court of Appeals, Western District, in Missouri v. Brown, ___ U.S. ___, 101 S.Ct. 1735, 68 L.Ed.2d 222 (1981). See State v. Sinclair, 606 S.W.2d 271 (Mo.App. 1980), vacated and remanded to the Court of Appeals, Southern District, in Missouri v. Sinclair, ___ U.S. ___, 101 S.Ct. 3044, 69 L.Ed.2d 415 (1981). See State v. Lowery, 608 S.W.2d 445 (Mo.App. 1980), vacated and remanded to the Court of Appeals, Eastern District, in Missouri v. Lowery, ___ U.S. ___, 101 S.Ct. 3044, 69 L.Ed.2d 415 (1981). See State v. (Timothy) Crews, 607 S.W.2d 759 (Mo.App. 1980); State v. (Terry) Crews, 607 S.W.2d 729 (Mo.App. 1980); State v. Helton, 607 S.W.2d 772 (Mo. App. 1980); State v. Tunstall, 607 S.W.2d 809 (Mo.App. 1980), all of which were vacated and remanded to the Court of Appeals, Eastern District in Missouri v. Crews, ___ U.S. ___, 101 S.Ct. 3103, 69 L.Ed.2d 968 (1981). In all of the above cases where an application for transfer to this Court was requested, all such applications were denied.
See State v. (Donald) Greer, 605 S.W.2d 93 (Mo. 1980); State v. Kendrick, 606 S.W.2d 643 (Mo. 1980); and State v. (Rollan Anthony) Williams, 606 S.W.2d 777 (Mo. 1980), all of which were vacated and remanded to this Court in Missouri v. Greer, ___ U.S. ___, 101 S.Ct. 3000, 69 L.Ed.2d 385 (1981).
The original opinion filed by the Missouri Court of Appeals, Eastern District, State v. Helton, 607 S.W.2d 772 (Mo.App. 1980), is approved and affirmed and by reference made a part of this opinion. Sours v. State, 603 S.W.2d 592 (Mo. banc 1980) (Sours II), cert. denied, Missouri v. Sours, ___ U.S. ___ 101 S.Ct. 953, 67 L.Ed.2d 118 (1981); and State v. Haggard, 619 S.W.2d 44 (Mo. banc 1981).
That part of the judgment of the circuit court imposing a ten year sentence on defendant for armed criminal action is reversed. That part of the judgment imposing the fifteen year sentence for first degree robbery is affirmed.
DONNELLY, C. J., and SEILER, WELLIVER, MORGAN, HIGGINS, and BARDGETT, JJ., concur.
RENDLEN, J., concurs in part and dissents in part in separate opinion filed.
I join the majority in its affirmance of appellant's conviction for robbery in the first degree. However, I dissent to that portion of the majority opinion reversing appellant's conviction for armed criminal action for the same reasons set forth in my dissenting opinion in State v. Haggard, 619 S.W.2d 44, decided this date.