¶1concurring in part and dissenting in part.
¶2I concur as to that part of the principal opinion that affirms the conviction of robbery first degree. Believing that the time has come to return the law of double jeopardy in Missouri to a state of coherency, I dissent from that part of the principal opinion that vacates the judgment and sentence for armed criminal action and orders the appellant discharged.
¶3In what has become known as Sours I, Sours v. State, 593 S.W.2d 208 (Mo. banc 1980), this Court held that to convict a defendant of both first degree robbery and armed criminal action placed that defendant twice in jeopardy for the same offense. The United States Supreme Court vacated the Sours I decision and remanded the case to this Court for reconsideration in 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 (1980).
¶4In what has become known as Sours II, Sours v. State, 603 S.W.2d 592 (Mo. banc 1980), a majority of this Court, after examining Whalen, concluded that the Sours I opinion and judgment ought to be reinstated as supplemented by the Sours II opinion. Id. at 606. This supplementation consisted of discussion leading to the majority’s conclusion that: “The General Assembly did clearly intend to impose two separate punishments for armed criminal action and the lesser included offense.” Id. at 603. The majority went on to hold, however, that:
“If the vacation of our prior judgment and remand of the case for reconsideration in light of Whalenwas intended to lead this Court to adopt the view that the General Assembly is free to impose separate punishments for two crimes that constitute the same offense under the traditional same evidence test, we are unable to so read Whalenand we are not prepared to take that step. We believe that the United States Supreme Court has heretofore reserved that question as noted above. We believe that such a ruling would abolish the traditional double jeopardy protection against multiple punishments for the same offense. It would require bifurcation of the meaning of ‘same offense’ under the double jeopardy clause. It would grant to the state legislature the power to define the meaning of ‘same offense’ as used in the double jeopardy clause of the Constitution, a traditional judicial function. The implicit effect of such a holding would be that the double jeopardy clause would hereafter *8be only a limitation on the executive and judicial branches, but not on the legislative branch of government. We do not believe that it is appropriate for this Court to make such a ruling. If such a ruling is to be made, it is the responsibility of the United States Supreme Court to make it.” Id. at 606.
¶5In my opinion, the United States Supreme Court has now spoken. In United States v. DiFrancesco,-U.S.-, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980), Justice ' Blackmun, writing for a majority of the Court, concluded that the constitutional double jeopardy guarantee against multiple punishment was not involved in the case. Why? Because:
“As Ex parte Lange [18 Wall. 163, 21 L.Ed. 872] demonstrates, a defendant may not receive a greater sentence than the legislature has authorized. No double jeopardy problem would have been presented in Ex parte Lange if Congress had provided that the offense there was punishable by both fine and imprisonment, even though that is multiple punishment. See Whalen v. United States, 445 U.S. 684, 688-89, 100 S.Ct. 1432, 1436, 63 L.Ed.2d 715 (1980); id., at 697-98, 100 S.Ct. at 1440-41 (concurring opinion). The punishment authorized by Congress under §§ 3575 and 3576 is clear and specific and, accordingly, does not violate the guarantee against multiple punishment expounded by Ex parte Lange.” 101 S.Ct. at 438.
¶6I would adopt the multiple punishment double jeopardy theory espoused in Westen, The Three Faces of Double Jeopardy: Reflections on Government Appeals of Criminal Sentences, 78 Mich.L.Rev. 1001, 1026-1032 (1980), to-wit: “[T]he double jeopardy clause operates as a presumption against finding that domestic law intends multiple offenses and multiple punishment, a presumption that can be overcome only by ‘clear and unmistakable’ evidence that the domestic law intends offenses and sentences be cumulated.” Id. at 1026.
¶7I believe that this Court, in Sours II, found such “clear and unmistakable” evidence. In Sours II, the majority held:
“The conclusion is inescapable that the Missouri General Assembly did intend to impose punishment for armed criminal action ‘in addition to any punishment provided by law for the crime committed by, with, or through the use, assistance, or aid of a dangerous [instrument] or deadly weapon.’ ” 603 S.W.2d at 603.
¶8In light of Whalen, DiFrancesco, Sours II, and Professor Westen, I would affirm the conviction for armed criminal action.