State v. Washington , 200 S.W.3d 83 ( 2006 )

200 S.W.3d 83 (2006)

STATE of Missouri, Respondent,
v.
Phillip W. WASHINGTON, Appellant.

No. WD 64783.

Missouri Court of Appeals, Western District.

June 6, 2006. Motion for Rehearing and/or Transfer Denied August 1, 2006. Application for Transfer Denied September 26, 2006.

Jeannie Marie Willibey, Kansas City, MO, joins on the briefs for Appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Jefferson City, MO, for Respondent.

Evan J. Buchheim, Asst. Attorney General, Jefferson City, MO, joins on the briefs for Respondent.

Before JAMES M. SMART, JR., P.J., ROBERT G. ULRICH, and LISA WHITE HARDWICK, JJ.

Motion for Rehearing and/or Transfer to Supreme Court Denied August 1, 2006.

Order

PER CURIAM.

Phillip W. Washington appeals his convictions from a jury trial for two counts of first-degree robbery, section 569.020,^[1] and one count of armed criminal action, section 571.015. Washington contends that the verdict directors were in error, and that the court improperly sentenced him with regard to the recommendations of the jury. We reverse the judgment as to the contention related to sentencing.

The balance of Washington's points on appeal are affirmed pursuant to Rule 30.25(b) as lacking precedential value. A memorandum has been furnished the parties as to the points affirmed.

Washington's contention as to sentencing is that the trial court plainly erred by exceeding its authority in sentencing him to a term greater than the jury recommended for Count I. He argues that the court violated section 557.036.5, RSMo Supp.2004, in sentencing him to a twenty-year term, which exceeded the twelve-year recommendation from the jury. Section 557.036.5, RSMo Supp.2004, states:

If the jury returns a verdict of guilty in the first stage and declares a term of imprisonment in the second stage, the court shall proceed as provided in subsection 1 of this section except that any term of imprisonment imposed cannot exceed the term declared by the jury unless the term declared by the jury is less than the authorized lowest term for the offense, in which event the court cannot impose a term of imprisonment greater than the lowest term provided for the offense. (Emphasis added.)

The State concedes this point and recommends the case be remanded to the trial court to resentence Washington on Count I to a term of no more than twelve years. The sentences on Count II for twenty years and Count III for three years were proper in that neither exceeded the recommendations of the jury.

We vacate the sentence on Count I and remand to the trial court to re-sentence Washington for Count I. The remainder of the trial court judgment is affirmed pursuant to Rule 30.25(b).

NOTES

[1] All statutory references are to the Revised Statutes of Missouri, 2000, unless otherwise indicated.