STATE v. PAYNE, 619 S.W.2d 75 (Mo.banc 1981)

STATE OF MISSOURI, RESPONDENT, v. MARLON PAYNE, APPELLANT.

No. 63135.Supreme Court of Missouri, En Banc.
July 14, 1981. Rehearing Denied July 29, 1981.

APPEAL FROM THE CIRCUIT COURT OF THE CITY OF ST. LOUIS; RICHARD J. BROWN, JUDGE.

John Putzel, Asst. Public Defender, St. Louis, for appellant.

John Ashcroft, Atty. Gen., Paul M. Spindel, Asst. Atty. Gen., Jefferson City, for respondent.

Reexamination on order of the United States Supreme Court

PER CURIAM:

[1] This case together with several others[1] was ordered reexamined in light of Albernaz v. United States, 450 U.S. 333, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981). Since all of the courts of appeals rulings were based upon our ruling in Sours v. State, 593 S.W.2d 208 (Mo. banc 1980) (Sours I), or Sours v. State, 603 S.W.2d 592 (Mo. banc 1980) (Sours II), the cases were all ordered transferred to this Court. Our examination of the double jeopardy issue made in light of Albernaz pursuant to the orders of the United States Supreme Court, appears in State v. Haggard, 619 S.W.2d 44 (Mo. banc No. 62227), decided July 14, 1981. [2] The original opinion filed by the Missouri Court of Appeals, Eastern District, State v. Payne, 607 S.W.2d 822 (Mo.App. 1980), is approved and affirmed and by reference made a part of this opinion. Sours v. State, 603 S.W.2d 592 (Mo. banc 1980) (Sours II), cert. denied, Missouri v. Sours, ___ U.S. ___, 101 S.Ct. 953, 67 L.Ed.2d 118 (1981); and State v. Haggard, 619 S.W.2d 44
(Mo. banc 1981). [3] The armed criminal action conviction is reversed. The conviction of robbery first degree is affirmed. [4] DONNELLY, C. J., and SEILER, WELLIVER, MORGAN, HIGGINS and BARDGETT, JJ., concur. [5] RENDLEN, J., concurs in part and dissents in part in separate opinion filed.

[1] See State v. Counselman, 603 S.W.2d 3 (Mo. App. 1980) State v. McGee, 602 S.W.2d 709 (Mo.App. 1980); State v. Payne, 607 S.W.2d 822 (Mo.App. 1980); State v. White, 610 S.W.2d 646
(Mo.App. 1980); State v. (Johnny) Williams, 610 S.W.2d 644
(Mo.App. 1980), all of which were vacated and remanded to the Court of Appeals, Eastern District, in Missouri v. Counselman,
___ U.S. ___, 101 S.Ct. 1690, 68 L.Ed.2d 190 (1981). See Brown v. State, 607 S.W.2d 801 (Mo.App. 1980); State v. Collins, 607 S.W.2d 781 (Mo.App. 1980); State v. Hawkins, 608 S.W.2d 496
(Mo.App. 1980); State v. (Eddie) Greer, 609 S.W.2d 423
(Mo.App. 1980); State v. Martin, 610 S.W.2d 18 (Mo.App. 1980), all of which were vacated and remanded to the Court of Appeals, Western District, in Missouri v. Brown, ___ U.S. ___, 101 S.Ct. 1735, 68 L.Ed.2d 222 (1981). See State v. Sinclair, 606 S.W.2d 271
(Mo.App. 1980), vacated and remanded to the Court of Appeals, Southern District, in Missouri v. Sinclair, ___ U.S. ___, 101 S.Ct. 3044, 69 L.Ed.2d 415 (1981). See State v. Lowery, 608 S.W.2d 445 (Mo.App. 1980), vacated and remanded to the Court of Appeals, Eastern District, in Missouri v. Lowery, ___ U.S. ___, 101 S.Ct. 3044, 69 L.Ed.2d 415 (1981). See State v. (Timothy) Crews, 607 S.W.2d 759 (Mo.App. 1980); State v. (Terry) Crews, 607 S.W.2d 729 (Mo.App. 1980); State v. Helton, 607 S.W.2d 772
(Mo.App. 1980); State v. Tunstall, 607 S.W.2d 809 (Mo.App. 1980), all of which were vacated and remanded to the Court of Appeals, Eastern District in Missouri v. Crews, ___ U.S. ___, 101 S.Ct. 3103, 69 L.Ed.2d 968 (1981). In all of the above cases where an application for transfer to this Court was requested, all such applications were denied.

See State v. (Donald) Greer, 605 S.W.2d 93 (Mo. 1980) State v. Kendrick, 606 S.W.2d 643 (Mo. 1980); and State v. (Rollan Anthony) Williams, 606 S.W.2d 777 (Mo. 1980), all of which were vacated and remanded to this Court in Missouri v. Greer, ___ U.S. ___, 101 S.Ct. 3000, 69 L.Ed.2d 385 (1981).

[6] RENDLEN, Judge, concurring in part and dissenting in part. [7] I join the majority in its affirmance of appellant’s conviction for first degree robbery.

Page 76

However, I dissent to that portion of the majority opinion reversing appellant’s conviction for armed criminal action for the same reasons set forth in my dissenting opinion in State v. Haggard, 619 S.W.2d 44, decided this date.

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