
    Edward Eugene COLLETT, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 39484.
    Missouri Court of Appeals, St. Louis District, Division One.
    Sept. 19, 1978.
    Robert C. Babione, Public Defender, James E. Sullivan, St. Louis, for movant-ap-pellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., St. Louis, for respondent.
   SMITH, Judge.

Movant appeals from the order of the trial court dismissing without evidentiary hearing a motion to set aside sentence. Movant was convicted by a jury of two counts of armed robbery. The trial court sentenced movant to twenty-seven years on each count and specified that the sentences were to run consecutively. Movant was sentenced under the Second Offender Act. Movant bases his 27.26 motion upon the contention that the consecutive sentences were imposed pursuant to Sec. 546.480 RSMo 1969, declared unconstitutional by the Supreme Court in State v. Baker, 524 S.W.2d 122 (Mo. banc 1975).

Here the record does not indicate that the trial court relied upon Sec. 546.480 in imposing sentence. The record also does not clearly indicate that the court based its determination that the sentences should run consecutively upon discretionary grounds. During sentencing when the matter was called to the court’s attention, it did indicate that it was taking into account the “circumstances surrounding the facts in the case.” Whether this statement was directed specifically to the length of sentence or the consecutive nature of the sentence is not free from doubt although it appears to be directed to both. There is an additional feature to this case. The sentencing judge and the judge who passed on the 27.26 motion were the same person. In that posture we must presume that the trial court, freed of the constraints of the statute, reviewed the 27.26 motion within the proper constitutional framework and in such a situation remand for resentencing is not constitutionally required. See Lawson v. State, 542 S.W.2d 796 (Mo.App.1976); Hudson v. State, 552 S.W.2d 244 (Mo.App.1977). The record before us on both the original trial and the 27.26 motion supports the trial court’s finding that discretion was exercised at the time of sentencing.

Judgment affirmed.

CLEMENS, P. J., and McMILLIAN, J., concur.  