STATE OF MISSOURI, PETITIONER V. DANNY HUNTER No. 81-1214 In the Supreme Court of the United States October Term, 1981 On Writ Of Certiorari To The Court Of Appeals Of Of Missouri, Western District Brief for the United States as Amicus Curiae Supporting Reversal TABLE OF CONTENTS Interest of the United States Constitutional provision and statutes involved Statement Summary of argument Argument: The Double Jeopardy Clause does not bar the legislature from authorizing the imposition of "multiple" punishments for the "same offense" Conclusion CONSTITUTIONAL PROVISION AND STATUTES INVOLVED 1. The Fifth Amendment to the United States Constitution provides in pertinent part: * * * (N)or shall any person be subject for the same offence to be twice put in jeopardy of life or limb * * *. 2. Mo. Ann. Stat. App. Section 560.120 (Vernon 1979), provides: Every person who shall be convicted of feloniously taking the property of another from his person, or in his presence, and against his will, by violence to his person, or by putting him in fear of some immediate injury to his person; or who shall be convicted of feloniously taking the property of another from the person of his wife, servant, clerk or agent, in charge thereof, and against the will of such wife, servant, clerk or agent by violence of the person of such wife, servant, clerk or agent, or by putting him or her in fear of some immediate injury to his or her person, shall be adjudged guilty of robbery in the first degree. 3. Mo. Ann. Stat. App. Section 560.135 (Vernon 1979), provides in pertinent part: Every person convicted of robbery in the first degree by means of a dangerous and deadly weapon and every person convicted of robbery in the first degree by any other means shall be punished by imprisonment by the division of corrections for not less than five years * * *. 4. Mo. Ann. Stat. App. Section 559.225 (Vernon 1979), provides in pertinent part: 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 or deadly weapon is also guilty of the crime of armed criminal action and, upon conviction, shall be punished by imprisonment by the division of corrections 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 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. * * * * QUESTION PRESENTED Whether the Double Jeopardy Clause bars the imposition, in a single proceeding, of legislatively-authorized separate sentences for two offenses arising from a single transaction that are deemed not to satisfy the test announced in Blockburger v. United States, 284 U.S. 299 (1932). INTEREST OF THE UNITED STATES This case presents an important question concerning the effect of the Double Jeopardy Clause when, pursuant to express legislative authorization, separate sentences are imposed in a single proceeding for convictions under two criminal statutes whose elements may not satisfy the test announced in Blockburger v. United States, 284 U.S. 299 (1932). Although this is a state case, the question here has a direct impact upon federal prosecutions. Respondent was convicted and separately sentenced in this case for robbery in the first degree, in violation of Sections 560.120 and 560.135, Mo. Ann. Stat. App. (Vernon 1979), and for armed criminal action, in violation of Section 559.225, Mo. Ann. Stat. App. (Vernon 1979). The latter statute expressly requires that a defendant convicted of armed criminal action be sentenced to a term of imprisonment "in addition to any punishment provided by law" for the underlying felony. In 18 U.S.C. (Supp. IV) 924(c), Congress similarly has required federal district courts to impose a prison sentence on a defendant convicted of using or carrying a firearm in the commission of a federal felony "in addition to the punishment provided for the commission" of the underlying felony. Because the underlying felonies bear the same relationship to the firearms offenses in both the Missouri and federal statutes, and the legislative intent regarding cumulative punishment appears to be the same, the United States has a significant interest in the resolution of the issue presented for review. STATEMENT 1. Under Missouri law, any person who commits a felony (with certain exceptions not pertinent here) through the use of a dangerous or deadly weapon is guilty of the crime of armed criminal action and shall be punished by at least three years' imprisonment. Mo. Ann. Stat. App. Section 559.225.1 (Vernon 1979). The statute provides that "(t)he punishment imposed pursuant to this subsection shall be in addition to any punishment provided by law * * *" for the underlying felony. Following a jury trial in the Circuit Court of Jackson County, Missouri, respondent was convicted of robbery in the first degree (Mo. Ann. Stat. App. Sections 560.120 and 560.135 (Vernon 1979)), armed criminal action predicated on the first degree robbery (Mo. Ann. Stat. App. Section 559.225 (Vernon 1979)), and assault with malice (Mo. Ann. Stat. App. Section 559.180 (Vernon 1979)). Respondent was sentenced to concurrent terms of ten years' imprisonment for the robbery and 15 years' imprisonment for the armed criminal action, and to a consecutive term of five years' imprisonment for the assault (J.A. 10-12). The facts, which are not in dispute, showed that on November 24, 1978, respondent and two accomplices entered a supermarket and ordered the manager, at gun point, to open two safes (Pet. App. A-1 to A-2). While the manager was complying with the demands of the robbers, respondent struck him twice with the butt of a revolver (id. at A-2). An off-duty police officer attempted to stop the robbers as they were leaving the store but respondent fired a shot at the officer and respondent and his accomplices managed to escape (ibid.). After his arrest, respondent gave an oral and a written confession to the police and was positively identified by the store manager and the officer at separate lineups (id. at A-2 to A-3). 2. On appeal, the Missouri Court of Appeals affirmed respondent's convictions for robbery and assault but vacated respondent's conviction for armed criminal action and set aside his sentence on that count (Pet. App. A-1 to A-12). As a result of the lower court's action, instead of serving a total of 20 years' imprisonment (15 years for armed criminal action and five years for assault), respondent's sentence has been reduced to a total of 15 years' imprisonment (ten years for robbery and five years for assault). In vacating the conviction and sentence for armed criminal action, the court of appeals relied (Pet. App. A-3) on the decision of the Supreme Court of Missouri in State v. Haggard, 619 S.W.2d 44 (1981), petition for cert. pending, No. 81-625 (filed Sept. 24, 1981), which reaffirmed the earlier decisions of the Missouri Supreme Court in Sours v. State, 593 S.W.2d 208, vacated sub nom. Missouri v. Sours, 446 U.S. 962 (1980) (Sours I), and Sours v. State, 603 S.W.2d 592 (1980), cert. denied, 449 U.S. 1131 (1981) (Sours II). In Sours I, the defendant was convicted and separately sentenced for robbery in the first degree and armed criminal action based on the robbery. The Missouri Supreme Court concluded that under the test announced in Blockburger v. United States, 284 U.S. 299 (1932), armed criminal action and any underlying offense are the "same offense" for double jeopardy purposes because in order to convict for the underlying offense it is not necessary to prove any fact that does not also have to be established to convict for armed criminal action. Although the court acknowledged that the Missouri legislature clearly intended that a defendant would be subject to conviction and sentence under the armed criminal action statute in addition to any conviction and sentence for the underlying felony (593 S.W.2d at 216), the court inferred from the decisions in Simpson v. United States, 435 U.S. 6 (1978), and Jeffers v. United States, 432 U.S. 137 (1977), that "the double jeopardy clause prevents giving effect to the legislative intent to twice punish the 'same offense' * * *." 593 S.W.2d at 215. Accordingly, the court concluded: "Our determination that the description of the offense of armed criminal action includes all of the elements of the underlying felony requires that the (armed criminal action) statute be construed as if (the provision requiring imposition of a sentence in addition to that imposed for the underlying felony) were stricken * * * since the double jeopardy clause prohibits imposing punishment for both armed criminal action and for the underlying felony." Id. at 223. /1/ Following a remand by this Court for reconsideration of Sours I in light of Whalen v. United States, 445 U.S. 684 (1980), the Missouri Supreme Court, in Sours II, adhered to its previous ruling. It observed that in Whalen this Court held only that Congress did not authorize consecutive sentences for felony murder and the underlying felony, and that the Court "expressly reserved the question whether, had Congress clearly intended to impose multiple punishments for the same offense, the imposition of such punishment would violate the double jeopardy clause." 603 S.W.2d at 594. The court in Sours II reaffirmed its ruling that armed criminal action and the underlying felony are the "same offense" and that the Double Jeopardy Clause bars separately punishing a defendant for both offenses, notwithstanding the acknowledged intent of the legislature to impose two separate punishments. The effect of a contrary holding, according to the Missouri court, "would be that the double jeopardy clause would hereafter be only a limitation on the executive and judicial branches, but not on the legislative branch of government." 603 S.W.2d at 606. In State v. Haggard, supra, the Missouri Supreme Court reexamined its decisions in Sours I and Sours II in light of this Court's decision in Albernaz v. United States, 450 U.S. 333 (1981). The court distinguished Albernaz on the ground that, unlike its own cases involving armed criminal action and an underlying felony, Albernaz involved two offenses each of which required "proof of an element different from and not included in the other." 619 S.W.2d at 50. The Missouri court noted that this Court had "tacitly, if not in fact, sustained our position as stated in Sours II" by denying the State's petition for certiorari in that case. Id. at 51. Accordingly, the court held that although the Missouri legislature had intended to punish the defendant separately for violating both the robbery and armed criminal action statutes, "such multiple punishments for the same offense arising out of the same transaction violates the Fifth Amendment to the United States Constitution." Ibid. SUMMARY OF ARGUMENT Although the Double Jeopardy Clause has been said to prohibit "multiple punishments" for the "same offense," it has never been applied by this Court to invalidate a statutory scheme authorizing separate sentences for two offenses arising from a single act or transaction. In this case and in numerous other cases, however, the Missouri courts have concluded that the Clause bars the legislature from imposing separate punishments for two statutory offenses unless the legislature also defines those offenses in such a way that each offense "requires proof of a fact which the other does not" under the test established in Blockburger v. United States, 284 U.S. 299, 304 (1932). In our view, the approach of the Missouri courts trivializes the Double Jeopardy Clause by permitting the legislature to achieve a concededly legitimate result only if it does so by jumping through certain prescribed hoops. Assuming arguendo that armed criminal action and its underlying offense amount to the "same offense" under the Blockburger test, that fact alone is not, as the Missouri courts have assumed, dispositive of the double jeopardy question presented here. The question remains whether a defendant such as respondent has in fact been subjected to "multiple punishments" for the same offense and, if so, whether the Double Jeopardy Clause prohibits such a result even when the result is expressly authorized by the legislature. 1. Respondent was sentenced to concurrent terms of 15 and ten years' imprisonment for armed criminal action and the underlying felony (robbery in the first degree); thus, the effect is the same as if respondent had received only a single 15-year sentence. Moreover, Missouri law does not provide any limit on the length of the sentences that may be imposed for either of those offenses. Because respondent's concurrent sentences are well within the range of what he could have received under either statute, no question of multiple punishments is even presented in this case. 2. In any event, the Double Jeopardy Clause does not bar the legislature from authorizing the imposition of multiple punishments for the same offense. Indeed, the Clause places no restriction whatever on the power of the legislature to define crimes and fix punishments. See Whalen v. United States, 445 U.S. 684, 689 (1980). Thus, as this Court has recently explained: (T)he question of what punishments are constitutionally permissible is not different from the question of what punishment the Legislative Branch intended to be imposed. Where Congress intended, as it did here, to impose multiple punishments, imposition of such sentences does not violate the Constitution. Albernaz v. United States, 450 U.S. 333, 344 (1981). Here, the Missouri courts conceded that the state legislature intended to prescribe separate punishments for armed criminal action and the underlying offense. The courts concluded, however, that the Double Jeopardy Clause prohibits the fulfillment of this legislative mandate because armed criminal action and its underlying offense constitute greater and lesser included offenses under the Blockburger test. But in the multiple punishment context, the Blockburger test is merely a rule of statutory construction and "should not be controlling where, for example, there is a clear indication of contrary legislative intent." Albernaz v. United States, supra, 450 U.S. at 340. If, as this the Court stated in Albernaz, the constitutional question is one of ascertaining legislative intent, then the courts should be free to carry out the legislature's express intent to punish separately greater and lesser included offenses. ARGUMENT THE DOUBLE JEOPARDY CLAUSE DOES NOT BAR THE LEGISLATURE FROM AUTHORIZING THE IMPOSITION OF "MULTIPLE" PUNISHMENTS FOR THE "SAME OFFENSE" The Missouri Supreme Court, in the decisions relied upon by the court below, has erred in concluding that the Double Jeopardy Clause prohibits the courts from carrying out the express intent of the legislature to impose separate punishments for armed criminal action and the underlying felony. In the view of the Missouri courts, the legislature's intent must be disregarded because the elements of armed criminal action and its underlying offenses are not sufficiently distinct to satisfy the test established in Blockburger v. United States, 284 U.S. 299 (1932). We believe that the approach of the Missouri courts is based on an erroneous view of the Double Jeopardy Clause. 1. The Double Jeopardy Clause provides that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb." Ever since Ex parte Lange, 85 U.S. (18 Wall.) 163 (1873), this deceptively simple language has been understood as protecting not only against a second trial for the same offense but also "against multiple punishments for the same offense." North Carolina v. Pearce, 395 U.S. 711, 717 (1969). The fact remains, however, that this Court has never invoked the double jeopardy guarantee to invalidate a statutory scheme providing for the imposition of separate sentences in a single proceeding for violations of two or more statutory provisions arising from a single act or transaction. Nevertheless, purporting to rely on the decisions of this Court, the Missouri Supreme Court has struck down that portion of the armed criminal action statute that requires the trial judge to impose a separate sentence for armed criminal action in addition to that imposed for an underlying felony, on the theory that under the so-called "Blockburger test" the two statutory offenses constitute the "same offense" for double jeopardy purposes. In Blockburger, this Court held that a statute prohibiting the sale of certain drugs not in the original package and another statute barring the sale of the same drugs not pursuant to a written order of the purchaser defined separate offenses, thus permitting the imposition of separate and cumulative penalties under the two statutes even though both offenses arose from the same sale. The Court stated (284 U.S. at 304): The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not. The Blockburger test has been applied by this Court to determine "whether two offenses are the same for purposes of barring successive prosecutions" (Illinois v. Vitale, 447 U.S. 410, 416 (1980)) and also as "a rule of statutory construction * * * to determine whether Congress has in a given situation provided that two statutory offenses may be punished cumulatively." Whalen v. United States, 445 U.S. 684, 691 (1980). See Albernaz v. United States, 450 U.S. 333, 337 (1981). This case concerns application of the test only in the multiple punishment context, where, as the Court explained in Whalen (445 U.S. at 691-692), "(t)he assumption underlying the rule is that Congress ordinarily does not intend to punish the same offense under two different statutes. Accordingly, where two statutory provisions proscribe the 'same offense,' they are construed not to authorize cumulative punishments in the absence of a clear indication of contrary legislative intent." Petitioner appears to concede, and for purposes of this case we will assume, that the two statutory provisions involved here -- armed criminal action and the underlying offense of robbery in the first degree -- define greater and lesser-included offenses and thus are the "same offense" under the Blockburger test. /2/ The Missouri courts treated this determination as dispositive of the question whether the Constitution permits separate punishments to be imposed for violations of both statutes arising from the same act or transaction. In our view, however, this determination is merely the starting point for the necessary constitutional analysis. The question remains whether respondent has been subjected to "multiple punishments" for the same offense and, if so, whether the Double Jeopardy Clause prohibits such a result even where it clearly has been authorized by the legislature. /3/ 2. Respondent was sentenced to concurrent terms of 15 years' imprisonment for the armed criminal action conviction and ten years' imprisonment for the first degree robbery conviction. /4/ Because of the concurrent nature of the sentences, it is our understanding that under Missouri law the effect is the same as if respondent had received a single 15-year sentence. Furthermore, the Missouri robbery and armed criminal action statutes provide only that a convicted defendant must be sentenced to at least five and three years' imprisonment, respectively; neither statute sets a ceiling on the length of the prison sentence that may be imposed. Thus, a defendant could be sentenced under either statute to life imprisonment. /5/ Because respondent's concurrent sentences are well within the range of what he could have received under either statute standing alone, we find it difficult to understand what led the court below to conclude that respondent had been subjected to multiple punishments. Respondent's situation is markedly different from that of the defendants in Whalen and Albernaz, whose cumulative punishments unquestionably were "multiple" in the sense that they were exposed to greater punishment than they could have been had they received the maximum sentence permitted for either statutory offense. Here, in contrast, no question of multiple punishments is even presented. /6/ 3. Even if this case is treated as involving the imposition of "multiple punishments" for what, under Blockburger, amounts to the "same offense," the court below erred in concluding that the Double Jeopardy Clause prohibits such a result when the result is expressly authorized by the legislature. It is by now well established that the Double Jeopardy Clause does not restrict the power of the legislature to define crimes and fix punishments. See Whalen, supra, 445 U.S. at 689; Sanabria v. United States, 437 U.S. 54, 69 (1979); Brown v. Ohio, 432 U.S. 161, 165 (1977). /7/ Instead, where separate sentences are imposed in a single proceeding, the role of the double jeopardy guarantee is limited to assuring that the courts do not exceed the legislative mandate in imposing sentence. Ibid. As the Court explained in Whalen (445 U.S. at 688): It is not at all uncommon, for example, for Congress or a state legislature to provide that a single criminal offense may be punished both by a monetary fine and by a term of imprisonment. In that situation, it could not be seriously argued that the imposition of both a fine and a prison sentence in accordance with such a provision constituted an impermissible punishment. But if a penal statute instead provided for a fine or a term of imprisonment upon conviction, a court could not impose both punishments without running afoul of the double jeopardy guarantee of the Constitution. The limited scope of the double jeopardy protection against multiple punishment was underscored recently in Albernaz v. United States, supra, 450 U.S. at 344, where the Court stated that "the question of what punishments are constitutionally permissible is not different from the question of what punishment the Legislative Branch intended to be imposed. Where Congress intended, as it did here, to impose multiple punishments, imposition of such sentences does not violate the Constitution." Despite this unambiguous language, the Missouri Supreme Court has indicated that, until this Court "declares clearly and unequivocally that the Double Jeopardy Clause * * * does not apply to the legislative branch of government," it will continue to invalidate sentences imposed for armed criminal action where the defendant also has been sentenced for the underlying felony. State v. Haggard, supra, 619 S.W.2d at 51. The approach of the Missouri Supreme Court trivializes the Double Jeopardy Clause by elevating form over substance and permitting the legislature to achieve a concededly legitimate result only if it does so by jumping through certain prescribed hoops. The prohibition against multiple punishments for the same offense embodied in the Double Jeopardy Clause is, after all, a limitation not on the legislature but on the power of the courts in imposing sentence. The legislature, by exercising its power to define criminal offenses, may, free of any restraints imposed by the Double Jeopardy Clause, "punish() separately each step leading to the consummation of a transaction * * * and punish() also the completed transaction." Albrecht v. United States, 273 U.S. 1, 11 (1927). The Clause does not grant the courts a license to frustrate the legislative intent merely because the expression of that intent fails to satisfy an arbitrary linguistic standard. To the extent that the decisions of the Missouri courts assume "that any particular criminal transaction is made up of a determinable number of constitutional atoms that the legislature cannot further subdivide into separate offenses, "it demands more of the Double Jeopardy Clause than it is capable of supplying.'" Whalen, supra, 445 U.S. at 701 (Rehnquist, J., dissenting), quoting Westen & Drubel, Toward a General Theory of Double Jeopardy, 1978 Sup. Ct. Rev. 81, 113. See Comment, Twice in Jeopardy, 75 Yale L.J. 262, 311-313 (1965). The error in the approach of the Missouri courts can be illustrated by considering the following examples. Suppose a legislature enacted a statute providing that "whoever is convicted of crime X shall be punished by 10 years in prison, and then shall be punished again by another five years in prison, and then shall be punished a third time by paying a fine of $1,000." The operative effect of such a statute would be identical to that of one providing that "whoever is convicted of crime X shall be punished by 15 years in prison and a fine of $1,000." The former language is simply an eccentric way of stating what is more conventionally stated by the latter language. See Comment, Twice in Jeopardy, supra, at 302. Thus, a defendant who has been convicted of crime X and sentenced to a total of 15 years' imprisonment and a $1,000 fine pursuant to the former provision has no double jeopardy argument, despite the fact that he literally has been punished three times for the "same offense" of committing crime X. Cf. Gore v. United States, 357 U.S. 386, 391-392 (1958). From this point it requires little elaboration to conclude that a legislature could provide that whoever commits crime X shall be punished by 10 years in prison and an additional five years of commiting crime Y, where crime X is a lesser included offense of crime Y. To argue that crimes X and Y are the "same offense" under the Blockburger test would gain the defendant nothing when it came time for sentencing, for it would be perfectly clear that the legislature intended to punish the commission of the greater offense by adding five years to the sentence imposed for the lesser included offense. Indeed, the same would be true even if the legislature prescribed a punishment for the greater offense and then provided for more severe punishment for the lesser included offense, as the Missouri courts in effect concluded was done here (see note 2, supra). In any of these cases, the fact would remain that the legislature, in carrying out its duty to define offenses and ordain punishment, had provided a certain punishment for those who committed both crime X and crime Y. Nothing in the Double Jeopardy Clause prohibits the legislature from carrying out its duty in this fashion. Of course, legislatures do not normally provide criminal penalties in such circumlocutory fashion. Instead of providing a 10-year prison term followed by a five-year prison term, they normally provide simply a 15-year term. /8/ But a legislature's normative practice is beside the point, which is simply that, when a claim is made, as it is here, that a defendant has been sentenced to multiple punishments in violation of the Double Jeopardy Clause, such a claim cannot be decided merely by concluding that the offenses for which the defendant stands separately punished might be the "same offense" under the test established in Blockburger. The legislature is free to punish the offense or offenses in a variety of ways, and if the sentence imposed does not exceed what the legislature has authorized, the defendant has received all the protection the Double Jeopardy Clause affords. By holding that the Blockburger test provides a substantive standard that governs the constitutionality of multiple punishments, the Missouri courts have ignored the teaching of Albernaz that "the question of what punishments are constitutionally permissible is not different from the question of what punishment the Legislative Branch intended to be imposed." 450 U.S. at 344. In answering those questions, the Blockburger test is merely a rule of statutory construction and "should not be controlling where, for example, there is a clear indication of contrary legislative intent." 450 U.S. at 340. See also Whalen, supra, 445 U.S. at 693: "(W)here the offenses are the same under that test, cumulative sentences are not permitted, unless elsewhere specially authorized by Congress." To hold that legislative intent, no matter how clearly expressed, will be ignored unless it conforms to the Blockburger test would unjustifiably stand the Blockburger test on its head. It is one thing to hold, as did Blockburger, that the presence of distinct statutory elements demonstrates a legislative intent to allow cumulative punishment; it is quite another to use the distinct-offense test of Blockburger to thwart legislative intent, and this Court has never done so. /9/ Furthermore, we note that the Missouri courts have never questioned the power of the legislature to provide for enhanced sentencing of a defendant who uses a firearm in the commission of a felony. See State v. Kane, 629 S.W.2d 372, 377 (1982), petition for cert. pending, No. 81-2117 (filed May 7, 1982). Thus, if the legislature, instead of creating a separate armed criminal action offense, had merely provided for imposition of an additional penalty on those defendants who used firearms in the commission of a felony, even the Missouri courts would concede that there was no double jeopardy problem. Because the legislature has created two statutory offenses that do not meet the requirements of the Blockburger test, however, the Missouri courts have held that additional punishment for using a firearm is not permitted. But if the legislature could have accomplished the same result through an enhanced sentencing provision, it should be permitted, if it chooses, to create a separate armed criminal action offense, since the effect and purpose are precisely the same as those of an enhanced sentencing scheme. The Missouri courts simply fail to acknowledge the independent role of the legislature in defining conduct as criminal and in determining appropriate sentences. If the enhanced sentence statute is constitutional, it is because the legislative intent to provide for an additional penalty renders inapplicable any independent constitutional policy against multiple punishment. And if, as the Court has stated in Albernaz, the constitutional question is one of ascertaining legislative intent, then the legislature should be free to express its intent to punish separately greater and lesser included offenses. CONCLUSION The judgment of the Missouri Court of Appeals should be reversed. Respectfully submitted. REX E. LEE Solicitor General D. LOWELL JENSEN Assistant Attorney General ANDREW L. FREY Deputy Solicitor General ELLIOTT SCHULDER Assistant to the Solicitor General MERVYN HAMBURG Attorney JULY 1982 /1/ The decisions of the Missouri courts in Sours I and subsequent cases clearly rest on the Double Jeopardy Clause of the Fifth Amendment, which is applicable to the states through the Fourteenth Amendment (Benton v. Maryland, 395 U.S. 784, 794 (1969)). See 593 S.W.2d at 211. The court noted in Sours I that the double jeopardy provision of the Missouri Constitution was not applicable because it prohibits only retrial of a defendant for the same offense after acquittal by a jury and does not address the question of multiple punishments. 593 S.W.2d at 210-211. /2/ In Whalen this Court concluded that rape and felony murder predicated on that rape are the "same offense" under Blockburger and the particular applicable provisions of the D.C. Code because "(a) conviction for killing in the course of a rape cannot be had without proving all the elements of the offense of rape." 445 U.S. at 693-694. We question the value of the Blockburger test in determining whether two statutory offenses constitute the "same offense" where the offenses are not traditional greater and lesser included offenses but rather stand in relationship to each other as "compound" and "predicate" offenses. See Whalen, supra, 445 U.S. at 708-711 (Rehnquist, J., dissenting). Where such offenses are involved, we believe that the courts must do more than simply focus on the statutory elements in order to ascertain the intent of the legislature with regard to punishment. The ultimate point of the inquiry is whether the legislature intended the compound offense to function as an aggravated form of its predicates, in which case the punishment for the compound offense would encompass the entire course of conduct embodied in that offense, or whether, on the other hand, the legislature meant the compound offense to serve as an enhancement device by providing, apart from the punishment for the predicate offense, a separate punishment for the additional elements of criminality contained in the compound offense. One way of ascertaining the legislature's intent in this regard is to compare the punishment schemes of the compound and predicate offenses. Where the punishment authorized for the compound offense is invariably greater than that for the predicate offenses, it may be reasonable to assume that the legislature intended the punishment for the compound offense completely to supplant the punishment for its predicates. In the case of traditional greater and lesser included offenses, such as armed robbery and robbery or assault with a weapon and simple assault, the legislature ordinarily prescribes a more severe punishment for the aggravated offense. Compare 18 U.S.C. 2113(a) (bank robbery punishable by up to 20 years' imprisonment and $5,000 fine) with 18 U.S.C. 2113(d) (armed bank robbery punishable by up to 25 years' imprisonment and $10,000 fine); see also 18 U.S.C. 111 (simple assault punishable by not more than three years' imprisonment and $5,000 fine; assault with a weapon punishable by not more than 10 years' imprisonment and $10,000 fine). Similarly, the District of Columbia offense of felony murder at issue in Whalen invariably carried a more severe sentence than its underlying offenses (compare, e.g., D.C. Code Ann. Section 22-2404 (1973) (first degree murder, which includes felony murder, punishable by 20 years to life) with D.C. Code Ann. Section 22-2801 (1973) (rape punishable by any term of years or life)), thus permitting a rational interference that the legislature intended the punishment for the greater to include the punishment for the lesser offense. By way of contrast, the punishment authorized by the Missouri legislature for armed criminal action is not invariably greater than that for its predicates such as robbery in the first degree. On the contrary, while a defendant may be sentenced to life imprisonment for either offense (see page 15 & note 4, infra), the minimum punishment for robbery in the first degree is five years' imprisonment (Mo. Stat. Ann. App. Section 560.135 (Vernon 1979)), whereas the minimum punishment for one convicted for the first time of armed criminal action is only three years' imprisonment (Mo. Stat. Ann. App. Section 559.225 (Vernon 1979)). Thus, the sentence for first degree robbery (five years to life), which under the Missouri courts' Blockburger analysis is the lesser included offense, exceeds that for the "greater" offense of armed criminal action (three years to life). We note, in this regard, that in the federal system there is a similar relationship between 18 U.S.C. (Supp. IV) 924(c), the federal equivalent of armed criminal action, and its underlying offenses: the maximum punishment authorized for the underlying offenses will often exceed that for the Section 924(c) offense. Compare, e.g., 18 U.S.C. (& Supp. IV) 1201 (kidnapping punishable by imprisonment for any term of years or for life) with 18 U.S.C. (Supp. IV) 924(c) (first offender punishable by imprisonment for no less than one year and no more than ten years). Accordingly, whatever purpose the Blockburger test may serve in the case of such offenses as felony murder and rape, it has no useful function in the case of a sentence enhancement scheme, where, as is true of armed criminal action and 18 U.S.C. (Supp. IV) 924(c), it is apparent that the legislature has sought to impose an additional punishment on those who commit crimes through socially undesirable means. /3/ While we believe, as argued below, that the legislature is free to punish "twice" for the same element of misconduct under two statutes, we note that this is not such a case. Use of a dangerous weapon, though adverted to in Mo. Stat. Ann. App. Section 560.135 (Vernon 1979), is not in fact an element of first degree robbery in Missouri. The punishment proscribed for the offense is the same whether or not such a weapon is used. In this respect, the case differs from Simpson v. United States, 435 U.S. 6 (1978), in which the defendant arguably was being twice punished for the same use of a firearm. /4/ The Missouri courts apparently have construed the armed criminal action statute as reflecting a legislative intention to permit the trial courts to impose sentences for armed criminal action either concurrently or consecutively to the sentences imposed for the underlying felony. See Sours I, supra, 593 S.W.2d at 210. /5/ Indeed, in this case the trial judge so instructed the jury (see J.A. 4, 5), which, under Missouri law, was obligated to assess respondent's punishment. /6/ We note that in the federal system no multiple punishment question is presented when a defendant uses a firearm to commit an offense that has its own sentence enhancement provision for using a firearm (e.g., 18 U.S.C. 111, 2113), even though use of a firearm in the commission of a federal felony is also proscribed by a separate statute, 18 U.S.C. (Supp. IV) 924(c). In Busic v. United States, 446 U.S. 398 (1980), and Simpson v. United States, supra, this Court held that Congress did not authorize enhanced sentencing under Section 924(c) where the predicate felony statute contains its own enhancement provision. /7/ Other provisions of the Constitution circumscribe this power to some extent. See Whalen, supra, 445 U.S. at 689 n.3. /8/ In the case of Missouri's armed criminal action statute, it is perfectly logical for the legislature to have dealt with the use of dangerous weapons in the commission of other offenses by means of a single statute authorizing additional punishment, rather than by amending every felony statute on the books to the same end. This fact suggests to us the questionable validity of treating the armed criminal action prohibition and the predicate felony as being the "same" under the Blockburger test, since the legislative scheme contrasts sharply in its basic structure with the traditional format for specifying greater and lesser included offenses. See note 2, supra. /9/ In State v. Haggard, supra, 619 S.W.2d at 51, the Missouri Supreme Court relied on this Court's denial of certiorari in Sours II as support for its double jeopardy analysis. This reliance was improper. See, e.g., Hughes Tool Co. v. Trans World Airlines, Inc., 409 U.S. 363, 366 n.1 (1973); Agoston v. Pennsylvania, 340 U.S. 844 (1950) (opinion of Frankfurter, J.).