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08/09/83 BENJAMIN SMITH v. STATE MISSOURI

August 9, 1983

BENJAMIN SMITH, APPELLANT,
v.
STATE OF MISSOURI, RESPONDENT.



From the Circuit Court of St. Louis County Criminal Appeal from Motion Under Rule 27.26 (Post Conviction Relief) Judge Arthur Litz.

Before Crandall, P.j., Reinhard, Crist, JJ.

The opinion of the court was delivered by: Crist

Appeal from a Rule 27.26 motion which was sustained in part, overruled in part and in which movant was resentenced to a term of eight years imprisonment. We affirm.

Movant was convicted by a jury of stealing property of a value over $150, a Class C felony under § 570.30 RSMo 1978. In accordance with the jury assessment, the trial court sentenced movant to a term of five years imprisonment. The trial court then found movant to be a persistent offender and sentenced him to an additional consecutive term of three years. Movant was unsuccessful in his appeal. State v. Smith, 621 S.W.2d 94 (Mo. App. 1981).

Movant filed a 27.26 motion alleging insufficient assistance of counsel and improper sentencing. Movant specifically alleged he received two sentences, five years for the stealing charge and three years as a persistent offender, when he should have received one extended sentence under the persistent offender statute, § 558.016 RSMo 1978. The Rule 27.26 court overruled movant's claim of ineffective assistance of counsel and sustained his motion to set aside the sentence. It then sentenced movant to one term of eight years.

Movant asserts the trial court lacked jurisdiction to resentence him and therefore erred in doing so. However, the trial court resentenced movant under the specific authority of Rule 27.26 (i) and State v. Williams, 620 S.W.2d 59, 60 (Mo. App. 1981).

Judgment affirmed.

All concur.

19830809

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