concurring.
The probable cause issue in this case is a hairline call. Were it not for defendant’s feigned search for the trunk key which later fell from his shoe, I would hold the officers lacked probable cause to believe the trunk contained contraband. However, the trunk key charade, coupled with the other factors discussed in the principal opinion, supplies a basis for probable cause equal to that in State v. Burkhardt, 795 S.W.2d 399 (Mo. banc 1990). I therefore agree the search was permissible.
There is another problem, but it is unaddressed in defendant’s brief. As explained in footnote 1 of the principal opinion, § 195.020, RSMo 1986 — the statute making it a crime to possess cocaine — was repealed effective August 28, 1989, by the legislation identified in that footnote. The same legislation also repealed § 195.200, RSMo Supp.1988, the statute setting forth the range of punishment for violating § 195.020, RSMo 1986. Under § 195.200, the range of punishment for possession of cocaine was imprisonment in a state correctional institution for not more than twenty years or imprisonment in a county jail for not less than six months nor more than one year.
The 1989 legislation contained a new provision making it unlawful to possess a controlled substance: § 195.202, RSMo Cum. Supp.1989. Under that section possessing cocaine is a class C felony.
Count II of the information charged defendant with possessing cocaine March 27, 1989, a date five months prior to the effective date of the 1989 legislation. However, defendant’s trial took place February 13-14, 1990, some five and a half months after the effective date of the 1989 legislation. At the time of defendant’s trial the maximum term of imprisonment for a class C felony was seven years. § 558.011.1(3), RSMo 1986. That is still true. § 558.011.1(3), RSMo Cum.Supp.1990.
The jury assessed defendant’s punishment on Count II at ten years’ imprisonment. As noted in the principal opinion, the trial court imposed that sentence on Count II, ordering it to run concurrently with the ten-year sentence on Count I (the charge of transporting cocaine).
Section 1.160, RSMo 1986, provides:
“No offense committed ... or prosecution commenced or pending previous to or at the time when any statutory provision is repealed or amended, shall be affected by the repeal or amendment, but the trial and punishment of all such offenses ... shall be had, in all respects, as if the provision had not been repealed or amended, except (1) that all such proceedings shall be conducted according to existing laws; and (2) that if the penalty or punishment for any offense is reduced or lessened by any alteration of the law creating the offense, the penalty or punishment shall be assessed according to the amendatory law.”
In State v. Wommack, 803 S.W.2d 170 (Mo.App.1991), the accused was charged with two counts, one of which was possessing cocaine. As in the instant case, the possession in Wommack occurred before the effective date of the 1989 legislation but the trial occurred after the effective date. The jury in Wommack convicted the accused of both counts, assessing a ten-year sentence on the possession count and a two-year sentence on the other count. The trial court imposed those sentences, ordering them to run consecutively.
On appeal the accused maintained that by reason of § 1.160, RSMo 1986 (quoted above), he was entitled to the benefit of the lower range of punishment for the possession count in effect at time of trial. The accused asked this Court to vacate the sentence on the possession count and remand the case to the trial court for resentencing on that count as a class C felony. Relying on State v. Wright, 797 S.W.2d 811 (Mo.*121App.1990), and State v. Freeman, 791 S.W.2d 471 (Mo.App.1990), this Court held the accused was entitled to that relief. The sentence on the possession count was vacated and the case was remanded to the trial court for resentencing under the range of punishment established by the 1989 legislation.
The instant case differs from Wommack in that here the trial court ordered the sentence on the possession count (Count II) to run concurrently with the sentence on the transporting count (Count I). Under a principle characterized the “concurrent sentence doctrine,” it has been held a court may pass on the validity of fewer than all counts in a multi-count conviction if a ruling in the appellant’s favor as to the challenged counts would not reduce the penalty imposed as to the valid conviction. State v. Supinski, 779 S.W.2d 258, 264-65[11] (Mo.App.1989); State v. Davis, 624 S.W.2d 72, 77[6] (Mo.App.1981).
It may be defendant’s counsel in the instant case concluded it would be futile to attack the sentence on Count II because counsel believed the sentence on Count I is unassailable, hence the concurrent sentence doctrine would bar relief on Count II.
Be that as it may, I am satisfied we should not consider the validity of the sentence on Count II sua sponte. My remarks about that sentence are made solely because of the statement in footnote 1 of the principal opinion that defendant’s possession of the quantity of cocaine here constitutes the crime of trafficking drugs in the second degree, a class A felony under the 1989 legislation (§ 195.223, RSMo Cum. Supp.1989). I believe any effort to justify defendant’s sentence on Count II on that basis would conflict with Wommack. As we observed in Wommack, the accused was tried for possessing cocaine, not trafficking it. Although the instructions in the instant case are omitted from the legal file, I doubt the verdict-directing instruction on Count II hypothesized defendant possessed the quantity of cocaine necessary to constitute the crime of trafficking.
An attentive reader may also wonder whether it was proper to convict defendant of both transporting and possessing the same cocaine. That question, however, is also unaddressed in defendant’s brief, and because of the concurrent sentences I do not feel compelled to consider it sua sponte.
For the above reasons I concur in the principal opinion except its footnote 1.