Section 571.015

Title XXXVIII CRIMES AND PUNISHMENT; PEACE OFFICERS AND PUBLIC DEFENDERS

Chapter 571

Effective - 01 Jan 1979, 3 histories, see footnote   (history) 

  571.015.  Armed criminal action, defined, penalty. — 1.  Except as provided in subsection 4 of this section, any person who commits any felony under the laws of this state by, with, or through the use, assistance, or aid of a dangerous instrument or deadly weapon is also guilty of the crime of armed criminal action and, upon conviction, shall be punished by imprisonment by the department of corrections and human resources for a term of not less than three years.  The punishment imposed pursuant to this subsection shall be in addition to any punishment provided by law for the crime committed by, with, or through the use, assistance, or aid of a dangerous instrument or deadly weapon.  No person convicted under this subsection shall be eligible for parole, probation, conditional release or suspended imposition or execution of sentence for a period of three calendar years.

  2.  Any person convicted of a second offense of armed criminal action shall be punished by imprisonment by the department of corrections and human resources for a term of not less than five years.  The punishment imposed pursuant to this subsection shall be in addition to any punishment provided by law for the crime committed by, with, or through the use, assistance, or aid of a dangerous instrument or deadly weapon.  No person convicted under this subsection shall be eligible for parole, probation, conditional release or suspended imposition or execution of sentence for a period of five calendar years.

  3.  Any person convicted of a third or subsequent offense of armed criminal action shall be punished by imprisonment by the department of corrections and human resources for a term of not less than ten years.  The punishment imposed pursuant to this subsection shall be in addition to any punishment provided by law for the crime committed by, with, or through the use, assistance, or aid of a dangerous instrument or deadly weapon.  No person convicted under this subsection shall be eligible for parole, probation, conditional release or suspended imposition or execution of sentence for a period of ten calendar years.

  4.  The provisions of this section shall not apply to the felonies defined in sections 564.590, 564.610, 564.620, 564.630, and 564.640.

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(L. 1977 S.B. 60)

Effective 1-01-79

(1980) Armed criminal action statute which permitted conviction on charge of robbery first degree and on the same facts permitted conviction for armed criminal action was unconstitutional in that it violated the double jeopardy clause of the fifth amendment to the U.S. Constitution. Sours v. State (Mo.), 603 S.W.2d 592.

(1981) After reexamination in light of Albernaz v. United States, 450 U.S. 333, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981), the position of the Supreme Court expressed in Sours v. State, 603 S.W.2d 592 is affirmed, that by enacting statutes proscribing armed criminal action and robbery in the first degree with a dangerous and deadly weapon, the legislature intended to twice punish defendant for the same offense in violation of the double jeopardy clause of the Fifth Amendment. State v. Haggard (Mo.), 619 S.W.2d 44.

(1981) If evidence in case supports both crime of armed criminal action and underlying felony, jury may convict of only one, and jury must be instructed that the two offenses are submitted in the alternative and jury may not convict defendant of more than one of them. State ex rel. Westfall v. Ruddy (Mo.), 621 S.W.2d 42.

(1983) Conviction and sentence for both armed criminal action and first degree robbery in a single trial is not violative of the double jeopardy clause of the Fifth Amendment to the U.S. Constitution where the Missouri General Assembly intended that the punishment be cumulative, regardless of whether the statutes proscribed the same conduct under the test in Blockburger v. United States, 284 U.S. 299, 52 S.Ct.  180, 76 L.Ed. 306 (1932). Missouri v. Hunter (U.S.), 103 S.Ct. 673.

(1991)  Where defendant was convicted of involuntary manslaughter and armed criminal action for causing the death of a person while driving in an intoxicated state, conviction was reversed because an armed criminal action requires a culpable mental state of acting purposely, knowingly or recklessly.  Criminal negligence will not support an armed criminal action charge.  State V. Hernandez, 815 S.W.2d 67 (Mo.  App.).

(1993) In order for an automobile to become a dangerous instrument for purposes of this section, the operator or user of the automobile must possess an intent and motive for the automobile to be an instrument of harm.  Mere recklessness in the operation of an automobile does not give rise to armed criminal action.  State v. Pogue, 851 S.W.2d 702 (Mo. App. S.D.).

(1996)  Statute is written in prohibitive sense and not as a grant of a right.  McDermott v. Carnahan, 934 S.W.2d (Mo.banc).

(1998) Defendant may be convicted of armed criminal action and underlying crime without violating double jeopardy.  State v. Blackman, 968 S.W.2d 138 (Mo.banc), State v. Flenoy, 968 S.W.2d 141 (Mo.banc).

(2001) Three-year statute of limitations applies to charges of armed criminal action.  State v. Hyman, 37 S.W.3d 384 (Mo.App.W.D.).