State v. Vandiver

WELBORN, Commissioner.

Appeal from judgment of conviction and sentence, on jury verdict, to life imprisonment for murder in the first degree and to 30 years’ imprisonment for robbery in the first degree.

By information in the St. Charles County Circuit Court, Mason Vandiver was charged, in Count I, with robbery in the first degree of John Russell Stewart on January 7, 1977. By Count II, Vandiver was charged with murder in the first degree in killing John Russell Stewart, on January 7, 1977, in the perpetration of a robbery. A jury found the defendant guilty of robbery in the first degree and assessed a punishment of 30 years’ imprisonment. It also found him guilty of murder in the first degree, assessing a punishment of life imprisonment.

On his appeal from the ensuing judgment, the sole complaint of appellant is that his conviction for robbery cannot stand, inasmuch as it was the underlying felony relied upon for the first degree murder charge for which he was convicted. Appellant complains that to allow both convictions to stand would violate double jeopardy protection of the federal and state constitutions and would subject him to double punishment for a single offense.

In view of State v. Morgan, 592 S.W.2d 796 (Mo. banc 1980); vacated and remanded, Morgan v. Missouri, - U.S. -, 101 S.Ct. 56 , 66 L.Ed.2d 12 (1980); on remand, State v. Morgan, 612 S.W.2d 1 (Mo. banc 1981); and State v. Olds, 603 S.W.2d 501 (Mo. banc 1980), appellant’s contention must be sustained.

Judgment reversed as to Count I. Affirmed as to Count II.

PER CURIAM:

The foregoing opinion by WELBORN, C., is adopted as the opinion of the court.

All of the Judges concur.