State v. Kane

¶1concurring in part and dissenting in part.

¶2I respectfully dissent from that portion of the majority opinion vacating defendant’s armed criminal action conviction. Defendant was charged with and convicted of armed criminal action, § 571.015, RSMo 1978 (effective January 1, 1979), and second degree robbery, § 569.030, RSMo 1978, (effective January 1, 1979). As the crimes occurred after January 1, 1979, the statutes prescribing these charges are found in the new criminal code, effective on that date.

¶3Without presenting a clear rationale explaining why it chose to strike down one of the convictions instead of the other, the majority reverses defendant’s armed criminal action conviction, vacating the 35 year sentence imposed thereunder, but leaves intact the second degree robbery charge which carried only a seven year sentence. Resorting to the statutory elements test for determining a violation of the double jeopardy proscription, the majority, following Sours v. State, 593 S.W.2d 208 (Mo. banc 1980) (Sours I); Sours v. State, 603 S.W.2d 592 (Mo. banc 1980) (Sours II), and State v. Haggard, 619 S.W.2d 44 (Mo. banc 1981), in some manner not clear from the opinion applies the doctrine announced in those cases to the crimes at bar. Those cases stand for the proposition that the 5 statutory elements of armed criminal action (§ 559.225.1, RSMo Supp.1976),

(A) felonious taking,

(B) property of another,

(C) from his person or in his presence,

(D) by violence or fear,

(E) deadly weapon,

¶4equaled and were identical to the 5 statutory elements of robbery first degree by means of a dangerous and deadly weapon (§ 560.120, RSMo 1969, and § 560.135, RSMo Supp.1975),

(A) felonious taking,

(B) property of another,

(C) from his person or in his presence,

(D) by violence or fear,

(E) deadly weapon.

¶5Concluding that conviction of these equivalent crimes violated double jeopardy, the Court, as previously noted in my dissent in those cases, arbitrarily and without explication of rationale invalidated the armed criminal action convictions but not the robberies. However, in the case at bar the crimes (robbery second degree and armed criminal action) are not equivalent because the statutory elements and the prescribed punishments for each crime differ. The armed criminal action here charged, § 571.-015, RSMo 1978, includes the following statutory elements:

(A) stealing,

(B) by use or threat of force,

*379(C) for an enumerated purpose,

(D) deadly weapon.

¶6The Class B felony of robbery second degree, § 569.030, RSMo 1978, which is a lesser crime, includes fewer statutory elements, which are:

(A) stealing,

(B) by use or threat of force,

(C) for an enumerated purpose.

¶7I submit that logic compels that the crime consisting of 4 statutory elements which carries the potential for a greater punishment is the greater offense and that which contains only 3 of those elements and which carries the potential for a lesser punishment is the lesser offense. Nevertheless, the majority curiously holds that conviction of the lesser offense precludes conviction and punishment1 for the greater. This quixotic application of the principles announced in Sours I, Sours II and Haggardseems specious and is destined to produce further aberrant results in this area of our criminal law.

¶8In addition, the principal opinion is burdened by other patent inconsistencies. The majority concedes the validity of what it denotes as a simple enhancement statute, stating that the armed criminal action statute under consideration defines a separate crime from the underlying or predicate felony, and the majority asserts that because of this fact any convictions under both statutes involved is violative of the double jeopardy clause. However, for the purpose of determining which conviction shall stand, the majority now analogizes armed criminal action to an enhancement statute and pronounces that the so-called underlying felony will always be upheld. Of course, the majority’s denomination of the armed criminal action as an enhancement statute in this second breath contradicts the double jeopardy analysis urged in the first.

¶9Finally, if the Sours I and II and Haggardsynthesis is indeed applicable to these crimes which occurred after January 1, 1979,1 must further dissent for the reasons set forth in my dissents in Sours I and II and Haggard.

¶10As noted above, these crimes occurred on March 10, 1979, (after the effective date of the new criminal code, January 1, 1979). The analysis contained in the concurring opinion of Bardgett, J., suggests the decision of this Court in State ex rel. Westfall v. Ruddy, 621 S.W.2d 42 (Mo. banc 1981), and its accompanying rationale, as controlling.2 If that analysis is apt, I would dissent for the reasons set forth in the dissent of Donnelly, C. J., and in my dissent to Westfall. Further, if Westfall were applied, the result would still be flawed by the arbitrary invalidation of conviction of the greater offense and the upholding of the lesser offense as urged by the concurring opinion of Bardgett, J.

¶11I would affirm defendant’s convictions.