The question in this appeal is whether the double jeopardy clause permits cumulative punishments under Arkansas law for theft and aggravated robbery arising out of a single incident. Because we conclude that the Arkansas legislature did not intend to prohibit multiple punishments here, the judgment of the district court1 denying habeas corpus relief is affirmed.

David Ray Collins was convicted in Arkansas state court of theft and aggravated robbery. He received consecutive sentences of twenty-five years for the robbery and five years for the theft. The information had charged that Collins and a companion did "employ physical force upon Viola F. Coyne & Elija Moses, to-wit: by tying them up with a telephone cord, with the purpose of committing a theft, and did have in their possession a pistol, a deadly weapon." R. 32. It also charged that they did "unlawfully and feloniously, with the purpose of depriving the true owner of her property, take unauthorized control over property belonging to Viola F. Coyne, to-wit: a firearm." Id. Following his imprisonment, Collins brought this action under 28 U.S.C. Sec. 2254 (1982), alleging that the imposition of cumulative sentences violated the fifth amendment. The district court denied him relief.

The fifth amendment provides that an accused may not be put in jeopardy twice for the same offense. The Supreme Court has interpreted this protection to forbid multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S. Ct. 2072, 2076, 23 L. Ed. 2d 656 (1969). In the context of cumulative sentences imposed after a single trial, however, "the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended." Garrett v. United States, --- U.S. ----, 105 S. Ct. 2407, 2419, 85 L. Ed. 2d 764 (1985); Missouri v. Hunter, 459 U.S. 359, 366, 103 S. Ct. 673, 678, 74 L. Ed. 2d 535 (1983). Thus, the question here is whether the Arkansas legislature intended to proscribe cumulative punishments for aggravated robbery and theft.

The legislative intent regarding multiple punishments is expressed in Arkansas Statutes Annotated section 41-105(1)(a) (1977 Repl.), which provides: "When the same conduct of a defendant may establish the commission of more than one offense, the defendant may * * * not be * * * convicted of more than one offense if one offense is included in the other, as defined in subsection (2)."2 Section 41-105(2)(a) provides that one offense is included in another if "it is established by proof of the same or less than all the elements required to establish the commission of the offense charged." Collins was convicted of and punished for two crimes. The first, theft, is defined by section 41-2203(1)(a): "A person commits theft of property if he knowingly takes or exercises unauthorized control over, or makes an unauthorized transfer of an interest in, the property of another person, with the purpose of depriving the owner thereof."3 The second, aggravated robbery, is defined in section 41-2102(1)(a): "A person commits aggravated robbery if he commits robbery * * * and he is armed with a deadly weapon, or represents by word or conduct that he is so armed." "A person commits robbery if with the purpose of committing a theft or resisting apprehension immediately thereafter, he employs or threatens to immediately employ physical force upon another." Id. Sec. 41-2103(1).4

The issue thus narrows to whether the theft charged is included in the offense of aggravated robbery charged. Facially, it is evident that theft is not so included, because theft requires an actual transfer of control of property while robbery requires only the use of force with the purpose of committing a theft. A robbery conviction may stand even if no transfer of property occurs. Thus, the Arkansas Supreme Court has held that theft is not a lesser included offense of aggravated robbery for double jeopardy purposes. Higgins v. State, 270 Ark. 19, 21, 603 S.W.2d 401, 402 (1980); see also Thompson v. State, 284 Ark. 403, 407, 682 S.W.2d 742, 744 (1985) (defendant not entitled to an instruction that theft is a lesser offense included within robbery); Hill v. State, 276 Ark. 300, 302, 634 S.W.2d 120, 121 (1982) (defendant not entitled to an instruction that theft is a lesser offense included within aggravated robbery).

Collins argues that Higgins is no longer authoritative in light of Akins v. State, 278 Ark. 180, 644 S.W.2d 273 (1983). The court held in Akins that battery in the first degree was an offense included in aggravated robbery. The reason was that under the information aggravated robbery was actually included in the proof required for the battery charge. Collins argues that Akins requires an examination of the particular conduct to determine whether an act constitutes more than one offense for jeopardy purposes. We reject this characterization. As recently stated by the Arkansas Supreme Court, "there may not be a conviction for two separate offenses when the statutory definition of one criminal offense encompasses all of the statutorily defined elements of a lesser included offense." Thomas v. State, 280 Ark. 593, 595, 660 S.W.2d 169, 170 (1983) (emphasis added). Thomas illustrates that the proper analysis is to compare the elements in the subsections under which an accused is charged.5 As shown above, such a comparison here shows that the theft offense charged is not an offense included in the aggravated robbery offense charged.

Section 41-105(2)(b) also provides that an offense is included in another if "it consists of an attempt to commit the offense charged or to commit an offense otherwise included within it." Collins argues that because robbery requires a purpose of committing a theft, robbery is the "same offense" as attempted theft. A similar argument was advanced in King v. State, 262 Ark. 342, 557 S.W.2d 386 (1977). The defendant argued that theft by receiving is an included offense of burglary under section 41-105(2)(b) because the burglary constituted an attempt to commit theft by receiving. The court found that this section did not apply because theft by receiving is not in the same generic class as burglary. Id. at 348, 557 S.W.2d at 390. The Arkansas Supreme Court recently stated that theft and robbery are not of the same generic class. Thompson v. State, 284 Ark. 403, 408, 682 S.W.2d 742, 745 (1985). Based on King, therefore, we think that the Arkansas courts would decline to apply section 41-105(2)(b) here.

Collins is correct in asserting that this court is not bound by the Arkansas courts' conclusions regarding federal constitutional law. Nevertheless, absent legislative intent to the contrary, we are required to follow the state courts' interpretation of what constitutes a same offense under state law. See Missouri v. Hunter, 459 U.S. at 368, 103 S.Ct. at 679. Because the offenses for which Collins was sentenced are not the same under Arkansas law, we conclude that the state legislature intended to permit cumulative punishment for them. Thus, the double jeopardy clause has not been violated.

The judgment of the district court is affirmed.