State v. Lowery

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608 S.W.2d 445 (1980)

STATE of Missouri, Respondent, v. Robert Gene LOWERY, Appellant.

No. 41834.

Missouri Court of Appeals, Eastern District, Division Three.

September 2, 1980.

Motion for Rehearing and/or Transfer Denied December 12, 1980.

Application to Transfer Denied January 13, 1981.

*446 Lawrence O. Willbrand, St. Louis, for appellant.

John Ashcroft, Atty. Gen., Paul Robert Otto, Steven W. Garrett, Asst. Attys. Gen., Jefferson City, George A. Peach, Circuit Atty., St. Louis, for respondent.

Motion for Rehearing and/or Transfer to Supreme Court Denied December 12, 1980.

CRIST, Judge.

Defendant was convicted by a jury of first degree robbery and armed criminal action pursuant to § 560.120, RSMo. 1969, § 560.135, RSMo.Supp.1975 and § 559.225, RSMo.Supp.1976. Defendant was sentenced consecutively under the Second Offender Act to twenty-five years for first degree robbery and twenty years for armed criminal action. Defendant appeals. We reverse in part.

On July 28, 1978, during the early evening hours, defendant and an accomplice entered Buncher's Pharmacy, St. Louis, Missouri, and asked the price of a tube of toothpaste. Immediately thereafter, defendant directed the owner at gunpoint to the rear of the pharmacy. Defendant took approximately $800.00 in cash and $250.00 in drugs.

Defendant charges that the trial court erred in sentencing him to twenty years for armed criminal action by reason of § 546.490, RSMo. 1969. We agree that the trial court erred, but for a different reason than that espoused by defendant.

Although double jeopardy was not mentioned by defendant in his appeal, reference is made to the United States Supreme Court's disposition of Sours v. State, 593 S.W.2d 208 (Mo. banc 1980). By authority of Whalen v. United States, 445 U.S. 684, 100 S. Ct. 1432, 63 L. Ed. 2d 715 (1980), the Supreme Court ordered Sours vacated and reconsidered. Missouri v. Sours, 446 U.S. 962, 100 S. Ct. 2935, 64 L. Ed. 2d 820 (1980). Our Missouri Supreme Court reconsidered Sours pursuant to the United States Supreme Court's mandate.

By reason of the last mandate of our Missouri Supreme Court, Sours v. State, 603 S.W.2d 592 (Mo. banc 1980), the twenty year sentence for the armed criminal action cannot stand.

That part of the judgment of the circuit court imposing a twenty year sentence on defendant for armed criminal action is reversed. That part of the judgment of the circuit court imposing a twenty-five year sentence on defendant for first degree robbery is affirmed.

DOWD, P. J., and REINHARD, J., concur.