Opinion
Docket No. 78-812.
Decided November 21, 1979.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, and Brian Marzec, Assistant Prosecuting Attorney, for the people.
Ronald G. Kraft, for defendant on appeal.
Defendant, Raymond Abend, appeals his conviction, based on his plea of nolo contendere, of second-degree murder, MCL 750.317; MSA 28.549. He was also convicted of possession of a firearm in the commission or attempted commission of a felony, MCL 750.227b; MSA 28.424(2). He has been sentenced to a prison term of 1 to 20 years on the murder conviction and to the mandatory two-year consecutive sentence on the felony-firearm conviction.
Defendant's challenge, on double jeopardy grounds, to his felony-firearm conviction was recently rejected by the Michigan Supreme Court. Wayne County Prosecutor v Recorder's Court Judge, 406 Mich. 374; 280 N.W.2d 793 (1979).
Defendant further challenges his felony-firearm conviction, arguing that the Legislature intended to punish only the illegal possession of a firearm. It is defendant's argument that the statute does not apply to him since the killing which gave rise to his murder conviction occurred in his home, where he was initially in lawful possession of the firearm.
We disagree. Defendant's position has no support in the statute or in relevant case law. On the contrary, the statute reflects exceedingly clear legislative intent to punish anyone who, at the time of commission or attempted commission of a felony, possesses a firearm whether the initial possession was legal or illegal. If the Legislature had intended to exempt anyone, such as law enforcement officers or persons licensed or otherwise lawfully in possession of a firearm, from the general proscription of MCL 750.227b; MSA 28.424(2), it most certainly would have done so by providing explicit statutory exceptions as it did throughout the firearms section of the penal code. MCL 750.222, et seq.; MSA 28.419, et seq.
Moreover, we find that the Legislature was well within the power vested in it by the Constitution in attaching criminal sanction to this possession.
Affirmed.