Opinion
Docket No. 77-4491.
Decided December 5, 1978.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward R. Wilson, Principal Attorney, Appeals, and Paul C. Louisell, Assistant Prosecuting Attorney, for the people.
Daniel J. Blank, for defendant on appeal.
Before: J.H. GILLIS, P.J., and V.J. BRENNAN and BASHARA, JJ.
The majority accepts the facts as set forth in our brother's dissent. In view of the opinion of Judge BASHARA expressed in People v McDowell, 85 Mich. App. 697; 272 N.W.2d 576 (1978), and that of Judge BRENNAN in People v Blount, 87 Mich. App. 501; 275 N.W.2d 21 (1978), we set aside the conviction for felony firearm. However, the defendant's sentence as an augmentation of the penalty for the underlying felony is upheld.
Reversed in part; affirmed in part.
V.J. BRENNAN, J., concurred.
Defendant appeals as of right from his plea-based conviction of two counts of armed robbery, MCL 750.529; MSA 28.797, and one count of possession of a firearm while in the commission of a felony, MCL 750.227b; MSA 28.424(2). The charges arose out of a July 12, 1977, incident wherein defendant and two companions entered a bar in the City of Detroit, took wallets from the owner and a customer, and removed some money from the cash register. One of defendant's companions was armed with a sawed-off rifle.
On appeal, defendant does not dispute his convictions on the armed robbery counts but challenges the "felony-firearm" conviction, raising four issues. I disagree with the majority's position concerning defendant's claim that this conviction is barred by principles of double jeopardy.
The guarantee against double jeopardy protects against multiple punishment for the same offense. North Carolina v Pearce, 395 U.S. 711, 717; 89 S Ct 2072; 23 L Ed 2d 656 (1969). In Michigan, it is necessary to examine both the elements of the crimes involved and the particular facts of the case to determine whether a defendant is being punished twice for the same offense. In People v Stewart (On Rehearing), 400 Mich. 540; 256 N.W.2d 31 (1977), the Court addressed multiple convictions arising out of a single sale of heroin. In that case the defendant was charged with both possession and delivery of heroin. While recognizing that in theory it is possible to do one of these acts without the other, the Court examined the particular facts of the case and concluded that the possession was merely incidental to the sale and did not constitute a separate offense:
"In a given case, sale may be found without possession. Likewise, possession may be determined without sale. However, depending upon the facts developed at trial, when the circumstance of possession is not severable or apart from a sale and the jury concludes the defendant is guilty of sale, then the possession blends together with the sale so as to constitute one single wrongful act.
* * *
"Defendant Stewart may not be `double punished' by convicting him of possession, which in this case was a `necessary' prerequisite or the sine qua non for the very sale for which he was also convicted." 400 Mich at 548, 549. See also People v Martin, 398 Mich. 303; 247 N.W.2d 303 (1976).
Examination of the facts in the instant case leads me to conclude that defendant's conviction on the felony-firearm count cannot stand. It is possible to commit an armed robbery without possessing a firearm. Any dangerous weapon or an article used or fashioned in a manner to lead the victim to reasonably believe it is a dangerous weapon is sufficient to satisfy the "armed" element of this offense. MCL 750.529; MSA 28.797. However, in the instant case possession of a rifle was the gravamen of the robbery armed charges. In effect, defendant is being doubly punished for committing a robbery while armed with a rifle. Punishment for different descriptions of the same offense is beyond the power of the Legislature to impose. See Gore v United States, 357 U.S. 386, 392; 78 S Ct 1280; 2 L Ed 2d 1405 (1958).
Furthermore, under the facts of this case the evidence available to the prosecutor to prove each element of the robbery armed charges is the identical evidence available and necessary to prove the felony-firearm charge. See People v Mitchell, 85 Mich. App. 757; 272 N.W.2d 601 (1978) (KAUFMAN, J., dissenting).
The majority upholds defendant's mandatory 2-year sentence by relying upon People v McDowell, 85 Mich. App. 697; 272 N.W.2d 576 (1978), which construed the statute to be a sentencing enhancement law. I respectfully disagree with this resolution of the double jeopardy problem.
MCL 750.227b; MSA 28.424(2) reads in pertinent part as follows:
"(1) A person who carries or has in his possession a firearm at the time he commits or attempts to commit a felony, except the violation of section 227 or section 227a, is guilty of a felony, and shall be imprisoned for 2 years. Upon a second conviction under this section, the person shall be imprisoned for 5 years. Upon a third or subsequent conviction under this section, the person shall be imprisoned for 10 years.
"(2) The term of imprisonment prescribed by this section shall be in addition to the sentence imposed for the conviction of the felony or the attempt to commit the felony, and shall be served consecutively with and preceding any term of imprisonment imposed for the conviction of the felony or attempt to commit the felony."
This language is not ambiguous. Where the language of a statute is clear and unambiguous, no interpretation is necessary. People v Carey, 382 Mich. 285, 292; 170 N.W.2d 145 (1969), Acme Messenger Service Co v Unemployment Compensation Comm, 306 Mich. 704, 709; 11 N.W.2d 296 (1943).
The Legislature clearly intended to create an offense separate and distinct from the underlying felony and to impose a separate punishment upon a person guilty of this offense. Having determined that defendant's conviction cannot stand, I do not think that the punishment prescribed by the statute for its violation can, nevertheless, be imposed for commission of the underlying felony.
I would, therefore, order defendant's conviction on the felony-firearm charge vacated and the sentence for this offense set aside.