State v. Tunstall

607 S.W.2d 809 (1980)

STATE of Missouri, Plaintiff-Respondent, v. Willie TUNSTALL, Defendant-Appellant.

No. 42034.

Missouri Court of Appeals, Eastern District, Division Three.

October 7, 1980.

Motion for Rehearing and/or Transfer Denied November 14, 1980.

Application to Transfer Denied December 15, 1980.

Robert C. Babione, Public Defender, Joseph Webb, Asst. Public Defender, St. Louis, for defendant-appellant.

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

Motion for Rehearing and/or Transfer to Supreme Court Denied November 14, 1980.

*810 DOWD, Presiding Judge.

Upon jury verdict, appellant was convicted of attempted first degree robbery and armed criminal action. Appellant was sentenced to consecutive terms of imprisonment of 10 years for attempted robbery and 6 years for armed criminal action.

In his appeal from his convictions, appellant raises only one contention. He argues his convictions for attempted robbery and armed criminal action subjected him to multiple punishment for the same offense in violation of state and federal constitutional provisions prohibiting double jeopardy.

Our Supreme Court has held that conviction of armed criminal action and the underlying felony constitutes a violation of the rule against double jeopardy and that the armed criminal action conviction cannot stand. Sours v. State, 593 S.W.2d 208 (Mo. banc 1980). Our Supreme Court reinstated and reaffirmed their holding in Sours v. State, 603 S.W.2d 592 (Mo. banc 1980). Although the underlying felony in the above-cited Supreme Court cases was first degree robbery, the holding of the above-cited cases would also be applicable if the underlying felony were attempted first degree robbery. State v. Smith, 607 S.W.2d 737 (Mo.App.1980).

Appellant's conviction of and sentence for attempted first degree robbery is affirmed. Appellant's conviction of and sentence for armed criminal action is reversed.

REINHARD and CRIST, JJ., concur.