State v. Thompson

629 S.W.2d 369 (1982)

STATE of Missouri, Respondent, v. Ray A. THOMPSON, Appellant.

No. 63325.

Supreme Court of Missouri, En Banc.

March 9, 1982.

Peter N. Sterling, Acting Public Defender, Gary L. Gardner, Asst. Public Defender, Kansas City, for appellant.

John Ashcroft, Atty. Gen., Jefferson City, Catheryn B. Starke, Asst. Atty. Gen., Kansas City, Steven W. Garrett, Asst. Atty. Gen., Jefferson City, for respondent.

*370 ON TRANSFER FROM THE COURT OF APPEALS

WELLIVER, Judge.

The appellant-defendant Thompson appealed to the Missouri Court of Appeals, Western District, from convictions and consecutive sentences of fifteen years for robbery second degree (Count I), seventy-five years for armed criminal action (Count II), and fifteen years for kidnapping (Count III). The court of appeals reversed the conviction and sentence on the armed criminal action (the longer sentence) and affirmed the other sentences. On the same date of the opinion in this case, the court of appeals after opinion transferred to this Court the case of State v. Kane, No. 63324, also involving the question whether the armed criminal action sentence or the sentence on the underlying felony should be vacated. In this background, this case also was transferred after opinion because it involved the same issue of general importance. Rule 83.02.

The court of appeals in the instant case reached the correct result when they reversed the armed criminal action sentence. State v. Kane, 629 S.W.2d 372 (Mo.banc 1982), heard and decided contemporaneously herewith.

The original opinion of the court of appeals is approved subject to this opinion. A copy of the original court of appeals opinion is attached hereto and is ordered published as the opinion of the court of appeals to be followed in the reporter by this opinion on transfer from the court of appeals. The final judgment on appeal will stand that:

The conviction for armed criminal action under Count II is reversed and the defendant is discharged from that judgment. The convictions for robbery second degree under Count I and for kidnapping under Count III are affirmed, but the sentences are set aside, and the causes are remanded to the trial court for reimposition of sentences.[1]

DONNELLY, C. J., and SEILER, MORGAN, HIGGINS and BARDGETT, JJ. concur.

RENDLEN, J. concurs in part and dissents in part in separate opinion filed.

RENDLEN, Judge, concurring in part and dissenting in part.

The crimes of second degree robbery and armed criminal action,[1] for which the defendant was charged and convicted, occurred on January 24, 1979. His second degree robbery conviction, § 569.030, RSMo 1978, resulted in a 15 year term of imprisonment, while under the armed criminal action conviction, § 571.015, RSMo 1978, he received a 75 year sentence.

I respectfully dissent in part and concur in part for the reasons expressed in my separate opinion in State v. Kane, 629 S.W.2d 370 (Mo.App.), decided concurrently herewith. I would affirm.

NOTES

[1] State v. Thompson, 629 S.W.2d 361 (Mo.App. 1981).

[1] There is no issue regarding the kidnapping conviction and its accompanying 15 year sentence considered by the majority in this appeal. Extended terms of imprisonment (15 years each) were additionally imposed for the robbery and kidnapping convictions under § 558.016, RSMo 1978.