621 SW2D 528 - Smith v. State

GUNN, Judge.

¶1The state appeals from a trial court order granting defendant’s Rule 27.26 motion to vacate judgment and sentence for two armed criminal action convictions. We affirm.

¶2Defendant entered guilty pleas to two counts of first degree robbery, one count of assault with intent to do great bodily harm and two counts of armed criminal action arising out of the robbery counts. Sentence on one count of armed criminal action was consecutive to one robbery count; the other was concurrent.

¶3Under the rule announced by the Missouri Supreme Court in Sours v. State, 593 S.W.2d 208 (Mo. banc) (Sours I), vacated, 446 U.S. 962, 100 S.Ct. 293564 L.Ed.2d 820, on remand, 603 S.W.2d 592 (Mo. banc 1980) (Sours II), cert. denied, 449 U.S. 1131, 101 S.Ct. 953, 67 L.Ed.2d 118 (1981), the trial court’s reversal of the armed criminal action judgment and sentence was proper. Sours I and Sours II hold that convictions for first degree robbery and armed criminal action, arising out of the same transaction, place defendant twice in jeopardy for a single offense in violation of the double jeopardy clause of the federal constitution. Armed criminal action, which consists of a felony plus the use of a dangerous and deadly weapon in the commission of the felony, and first degree robbery, the underlying felony, are the same offense because proof of robbery does not require proof of any fact not also required to prove armed criminal action. Sours I at 219-20; Sours II at 604.

¶4The Sours principle has been extended to reverse armed criminal action convictions where an accused has been convicted of both armed criminal action and a felony other than first degree robbery, such as assault with intent to do great bodily harm without malice [State v. McGee, 602 S.W.2d 709 (Mo.App.1980)]; second degree assault [State v. Sinclair, 606 S.W.2d 271 (Mo.App.1980)]; second degree murder [State v. (Donald) Greer, 605 S.W.2d 93 (Mo.1980)]; and kidnapping by and through the use, aid and assistance of a dangerous and deadly weapon [State v. (Eddie) Greer, 609 S.W.2d 423 (Mo.App.1980)]. The Missouri Supreme Court reexamined each of these cases, along with several others, in light of Albernaz v. United States, 450 U.S. 333, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981), per order of the United States Supreme Court, and approved and affirmed each opinion.1 See State v. Haggard, 619 S.W.2d 44 (Mo. banc 1981), in which the Missouri Supreme Court examines the double jeopardy issue in light of Albernazand reaffirms its Sours I and Sours II holdings.

¶5In its brief the state contends that in Sours II the Missouri Supreme Court failed to follow the mandates of the United States Supreme Court and urges us not to adhere to a faulty rule of law. We are constrained, however, to comply with the clear dictates of the Supreme Court of Missouri and to affirm the trial court’s reversal of defendant’s armed criminal action convictions to avoid placing defendant in unconstitutional double jeopardy. State v. Harris, 622 S.W.2d 330 (Mo.App.1981).

¶6Judgment affirmed.

CRIST, P. J., and SMITH, J., concur.

¶7. State v. McGee, 619 S.W.2d 70 (Mo. banc 1981); State v. Sinclair, 619 S.W.2d 73 (Mo. banc 1981); State v. (Donald) Greer, 619 S.W.2d 65 (Mo. banc 1981); State v. (Eddie) Greer, 619 S.W.2d 62 (Mo. banc 1981).