concurring in part and dissenting in part.
I concur in the majority opinion as it pertains to defendant’s convictions. I respectfully dissent from the majority’s holding on the issue of punishment. Specifically, I am unable to agree that the armed criminal action convictions constituted other non-sex crimes for purposes of application of § 558.026.1 RSMo 1986.
That section provides:
“Multiple sentences of imprisonment shall run concurrently unless the court specifies that they shall run consecutive*528ly; except that, in the case of multiple sentences of imprisonment imposed for the felony of rape, forcible rape, sodomy, forcible sodomy or an attempt to commit any of the aforesaid and for other offenses committed during or at the same time as that rape, forcible rape, sodomy, forcible sodomy or an attempt to commit any of the aforesaid, the sentences of imprisonment imposed for the other offenses may run concurrently, but the sentence of imprisonment imposed for the felony of rape, forcible rape, sodomy, forcible sodomy or an attempt to commit any of the aforesaid shall run consecutively to the other sentences.”
In Williams v. State, 800 S.W.2d 739 (Mo. banc 1990) and State v. Burgess, 800 S.W.2d 743 (Mo. banc 1990) the court held that the statute was ambiguous and would be interpreted to authorize the trial court to impose concurrent sentences where all the offenses were sex offenses.
§ 571.015 RSMo 1986 provides for the crime of armed criminal action. It states that if a person commits any felony, with certain exceptions, with or through the use of a dangerous instrument or deadly, weapon he is also guilty of armed criminal action. The appellate courts of this state and the United States Supreme Court have consistently held that armed criminal action and the underlying offense are the “same offense” for purposes of the double jeopardy clause. Missouri v. Hunter, 459 U.S. 359, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983); State ex. rel. Bulloch v. Seier, 771 S.W.2d 71 (Mo. banc 1989); Sours v. State, 593 S.W.2d 208 (Mo. banc 1980); Sours v. State, 603 S.W.2d 592 (Mo. banc 1980). The statute does not violate the prohibition against double jeopardy because the legislature properly may impose multiple punishment for the same conduct if it chooses to do so and makes that intention clear, which it has done in § 571.015. Missouri v. Hunter, supra.
Armed criminal action can exist only if the defendant has committed the underlying felony. It has no separate existence without the underlying felony. It punishes not the crime committed but the means by which it is committed. It constitutes a method for enhancement of punishment because of the means by which the felony is committed. Armed criminal action and the underlying felony cannot both be tried except in a single trial. State ex. rel. Bulloch v. Seier, supra. I am unable to conclude that armed criminal action is an “other offense” within the meaning of § 558.-026, the joinder of which mandates consecutive sentences for the underlying sex offenses.
State v. Williams, supra, reflects the belief of the Supreme Court that unless clearly mandated otherwise by statute trial judges should have the maximum of discretion in sentencing. To interpret the statute as the majority does, does not comport with the reasoning of State v. Williams. The distinction drawn by the majority between the charges filed here and Class A felony charges illustrates the problem. The defendant’s conduct here clearly subjected him to conviction for the Class A felonies of rape and sodomy. In fact all elements of those felonies were established in order to convict him of armed criminal action. By electing to charge the non-weapon sex crimes the prosecutor took from the trial judge the discretion in sentencing which might not have occurred (if I correctly read the majority opinion) if defendant had been charged with the crimes actually proven. Defendant here committed only sex crimes. He did so with a weapon. If he had been charged with the Class A felonies only, the trial court would have had discretion in determining whether the sentences should run concurrently or consecutively. By adding the armed criminal action counts, the majority holds that discretion is removed. Yet the conduct is exactly the same. I cannot concur in such an interpretation of the statute.
I would affirm the convictions and remand the case for resentencing in accord with State v. Burgess, supra.