author: R. B. Burns, P. J. Bronson, J. D. F. Walsh, J.

text:
    PEOPLE v GARY HUGHES
    Docket No. 77-2649.
    Submitted February 9, 1978, at Detroit.
    Decided September 20, 1978.
    Gary R. Hughes, on his plea of guilty, was convicted of armed robbery and possession of a firearm during commission of a felony in the Recorder’s Court for the City of Detroit, Joseph E. Maher, J. Defendant appeals claiming that the felony-firearm conviction violates the constitutional prohibition against double jeopardy. Held:

    The Legislature is free under the double jeopardy clause to define crimes and fix punishments. Once the Legislature has acted, courts may not impose more than one punishment for the same offense and prosecutors ordinarily may not attempt to secure that punishment in more than one trial. Separate statutory crimes may be the "same offense” under the double jeopardy clause, even though they are not identical in either constituent elements or actual proof. Each case ultimately turns upon whether the Legislature intended a particular act to be punished by only one or more statutes. Resort to the tests to determine whether separate statutory crimes are the "same offense” under the double jeopardy clause need not be done where the legislative intent is apparent regarding whether the Legislature intended a particular act to be punished by only one or more statutes. The felony-firearm statute applies to the felony of armed robbery since armed robbery is not one of the felonies explicitly excluded in the statute. The double jeopardy clause does not prohibit a Legislature from amending an armed robbery statute, to add as a proviso that there be a minimal punishment where the dangerous weapon is a firearm, in order to make certainty of minimal punishment the standard where firearms are involved in the commission of felonies, and there is no double jeopardy impediment to the Legislature’s attainment of this same goal by a separate statute making it a felony to possess a firearm at the time of the commission of any felony not explicitly excluded by the statute.

      References for Points in Headnotes
    [1, 6, 17] 16 Am Jur 2d, Constitutional Law § 332.
    21 Am Jur 2d, Criminal Law §§165, 166.
    [2, 3, 7, 12] 21 Am Jur 2d, Criminal Law §§ 183, 184, 189.
    [4, 5] 21 Am Jur 2d, Criminal Law § 20.
    67 Am Jur 2d, Robbery §§ 4, 48.
    [8] 21 Am Jur 2d, Criminal Law §§ 187, 189.
    [9, 13] 21 Am Jur 2d, Criminal Law § 547.
    67 Am Jur 2d, Robbery § 4.
    [10] 21 Am Jur 2d, Criminal Law § 577.
    [11] 21 Am Jur 2d, Criminal Law §§ 183, 184, 189.
    67 Am Jur 2d, Robbery §§ 4, 48.
    [14] 21 Am Jur 2d, Criminal Law § 187.
    [15] 21 Am Jur 2d, Criminal Law § 166.
    [16] 16 Am Jur 2d, Constitutional Law §§ 111-114.
    [18] 21 Am Jur 2d, Criminal Law §§ 187, 547.

      Affirmed.
    Bronson, J., concurred but wrote separately to state his reasoning that armed robbery and felony-firearm are not the same offense under Federal constitutional law, since each requires proof of a fact not required to convict of the other. The Legislature often provides for different statutory offenses which could apply to the same act, however, the prohibition on multiple punishment prevents a court from cumulating punishment where it appears that the Legislature did not intend that the defendant be cumulatively punished. In ascertaining such legislative intent, it is presumed that the Legislature did not intend to punish cumulatively a greater and necessarily included offense. A rule of lenity prevents multiple punishment where the legislative intent is unclear or doubtful; however, where the legislative intent regarding punishment is clear there is no multiple punishment problem in punishing a defendant under separate statutes. The legislative intent here is clear that there be two convictions and a minimum two-year sentence where a person commits a felony, not excluded in the statute, while in possession of a firearm.
    D. F. Walsh, J., dissented and would hold that application of the felony-firearm statute in this case violates the double jeopardy clauses of the United States and Michigan Constitutions. By definition, the felony necessary in order to convict a defendant of the felony-firearm violation is a lesser included offense of the felony-firearm violation itself since it is impossible to commit the latter without committing the former. The double jeopardy clause prohibits cumulative punishment and conviction for both offenses where a defendant is convicted of two offenses, one of which is included in the other. The constitutionally guaranteed protection against double jeopardy does not ultimately turn upon whether the Legislature intended a particular act to be punished by only one or more statutes. Legislative intent is considered in order to avoid a constitutional issue, if possible, not to resolve it. The felony-firearm conviction is cumulative punishment for the same offense since the felony-firearm violation and the armed robbery, upon which it was premised, do not constitute separate offenses because conviction for armed robbery does not require proofs of any facts unnecessary to the felony-firearm conviction, since every element of armed robbery must also be proved to establish violation of the felony-firearm statute. The Michigan Supreme Court has adopted more protective standards regarding the application of the double jeopardy clause than those compelled by the Federal constitution.
    Opinion op R. B. Burns, P. J.
    1. Constitutional Law — Double Jeopardy — Legislature—Courts —Prosecutors.

      The double jeopardy clause provides that no person shall be subject for the same offense to be twice put in jeopardy; the Legislature is free under the clause to deñne crimes and fix punishments; however, once the Legislature has acted, courts may not impose more than one punishment for the same offense and prosecutors ordinarily may not attempt to secure that punishment in more than one trial. (US Const Am V; Const 1963, art 1, § 16.)

    2. Constitutional Law — Criminal Law — Separate Statutory Crimes — Same Offense — Double Jeopardy — Elements— Proof — Legislature’s Intent.

      Separate statutory crimes may be the "same offense” under the double jeopardy clause, even though they are not identical in either constituent elements or actual proof; each case ultimately turns upon whether the Legislature intended a particular act to be punished by only one or more statutes.

    3. Constitutional Law — Double Jeopardy — Test—Same Offense —Separate Statutory Crimes — Legislative Intent.

      The courts have developed tests to determine whether separate statutory crimes are the "same offense” under the double jeopardy clause; however, resort need not be had to the tests where the legislative intent is apparent regarding whether the Legislature intended a particular act to be punished by only one or more statutes.

      4. Criminal Law — Felony-Firearm—Excluded Felonies — Included Felonies — Armed Robbery — Statutes.

      The felony-ñrearm statute applies by its terms to all felonies except those explicitly excluded; therefore, the statute applies to the felony of armed robbery, since it is not explicitly excluded by the statute. (MCL 750.227b; MSA 28.424[2].)

    5. Constitutional Law — Criminal Law — Double Jeopardy— Armed Robbery — Legislature—Firearms—Minimal Punishment — Felonies—Separate Statutes — Statutes.

      The double jeopardy clause does not prohibit a Legislature from amending an armed robbery statute, to add as a proviso that there be a minimal punishment where the dangerous weapon is a ñrearm, in order to make certainty of minimal punishment the standard where ñrearms are involved in the commission of felonies; and there is no double jeopardy impediment to the Legislature’s attainment of this same goal by a separate statute making it a felony to possess a ñrearm at the time of the commission of any felony not explicitly excluded by the statute. (MCL 750.227b; MSA 28.424[2j.)

    Concurrence by Bronson, J.
    6. Constitutional Law — Double Jeopardy — Courts—Prosecutors.

      The double jeopardy protection against multiple punishment is a restraint on courts and prosecutors.

    7. Constitutional Law — Separation of Powers — Legislature— Define Offenses — Fix Punishments — Multiple Punishment —Legislative Intent.

      The Legislature is the proper institution to deñne offenses and provide for their punishment; in so doing, the Legislature often provides for different statutory offenses which could apply to the same act; however, the prohibition on multiple punishment prevents a court from cumulating punishment where it appears that the Legislature did not intend that the defendant be cumulatively punished.

    8. Constitutional Law — Double Jeopardy — Courts—Construction — Legislative Intent — Criminal Law — Punishment— Presumptions — Necessarily Included Offenses — Lenity Rule.

      The courts have applied certain rules of construction as an aid to ascertaining the Legislature’s intent regarding whether a particular act is to be punished by only one or more statutes; it is presumed that the Legislature did not intend to punish cumula

      tively a greater and necessarily included offense; a rule of lenity prohibits multiple punishment where the legislative intent is unclear or doubtful; however, where the legislative intent regarding punishment is clear there is no multiple punishment problem.

    9. Criminal Law — Felonies—Felony-Firearm—Legislative Intent —Two Convictions — Multiple Punishment — Statutes.

      The Legislature has clearly provided for two convictions and a minimum two-year sentence where a person commits or attempts to commit a felony, not expressly excluded in the felony-ñrearm statute, while in possession of a ñrearm; since the legislative intent is clear, there can be no multiple punishment problem, or possibility of the court cumulating punishment where a defendant is convicted of armed robbery and possession of a ñrearm during the commission of the robbery. (MCL 750.227b; MSA 28.424[2].)

    10. Constitutional Law — Multiple Punishment — Legislative Intent — Separate Statutes.

      The constitutional protection against multiple punishment only prevents the courts and prosecutors from multiplying punishment, absent a clear legislative directive prescribing punishment; there is no multiple punishment problem where the statutory scheme evidences a clear legislative intent that the defendant be punished under separate statutes.

    11. Constitutional Law — Double Jeopardy — -Test—Separate Statutes — Same Offenses — Facts—Criminal Law — -Armed Robbery — Felony-Firearm.

      The test to determine whether separate statutory crimes are the "same offense" under the double jeopardy clause, provides that two statutory provisions deñne different offenses if each statute requires proof of an additional fact which the other does not; therefore, armed robbery and felony-ñrearm are not the same offense under Federal constitutional law since felony-ñrearm requires proof of a fact not required to convict of armed robbery, and armed robbery requires proof of facts not required for conviction of felony-ñrearm.

    Dissent by D. F. Walsh, J.
    12. Constitutional Law — Double Jeopardy — Same Offenses — Test —Facts—Cumulative Punishment.

      The test for determining whether two separately deñned crimes constitute the "same offense" for purposes of the double jeop

      ardy clause, provides that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not; unless the statutes involved satisfy that test the double jeopardy clause of the United States Constitution forbids cumulative punishment. (US Const, Am V.)

    13. Constitutional Law — Double Jeopardy — Cumulative Punishment — Felony-Firearm—Armed Robbery — Facts—Elements —Statutes.

      Cumulative punishment imposed by the felony-firearm statute upon a defendant convicted of the felony of armed robbery violates the Federal constitutional prohibition against cumulative punishment for the "same offense” since a conviction for armed robbery does not require proof of any facts unnecessary to the felony-firearm conviction because every element of the crime of armed robbery must also be proven to establish violation of the felony-firearm statute. (MCL 750.227b, 750.529; MSA 28.424[2], 28.797.)

    14. Criminal Law — Armed Robbery — Felony-Firearm—Lesser Included Offenses — Double Jeopardy — Constitutional Law.

      The felony of armed robbery by use of a firearm is, by definition, a lesser included offense of a felony-firearm violation incidental to that robbery because it is impossible to commit the latter without committing the former; therefore, conviction and sentencing for both a felony-firearm violation and for the underlying felony of armed robbery by use of a firearm is precluded by the double jeopardy provisions of the Federal and Michigan constitutions. (US Const, Am V; Const 1963, art 1, § 15.)

    15. Constitutional Law — Double Jeopardy — Legislative Intent— Multiple Punishment.

      The constitutionally guaranteed protection against double jeopardy does not ultimately turn upon whether the Legislature intended a particular act to be punished by only one or more statutes; one of the most fundamental principles of constitutional government is that the Constitution limits the power of the Legislature and not vice versa.

    16. Constitutional Law — Legislative Intent — Avoidance of Issues —Resolving Issues.

      Legislative intent is considered by the courts in order to avoid, if possible, a constitutional issue, not to resolve it.

      17. Constitutional Law — Double Jeopardy — Application—Michigan’s Standards.

      The Michigan Supreme Court has adopted more protective standards regarding the application of the double jeopardy clause, than those compelled by the Federal constitution.

    18. Constitutional Law — Double Jeopardy — Cumulative Punishment — Included Offenses.

      The double jeopardy clause prohibits not only cumulative punishment but also conviction for both offenses where a defendant is convicted of two offenses, one of which is included in the other; conviction for both a greater offense and one legally necessarily included is precluded.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cabalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, and Timothy A. Baughman, Assistant Prosecuting Attorney, for the people.

      Bruce R. Saperstein, for defendant.
    Before: R. B. Burns, P. J., and Bronson and D. F. Walsh, JJ.
   R. B. Burns, P. J.

Defendant pled guilty to robbery armed, MCL 750.529; MSA 28.797, and possession of a firearm during commission of a felony, MCL 750.227b; MSA 28.424(2), and appeals. We affirm.

Although defendant argues that he did not knowingly and understanding^ waive various constitutional rights before pleading guilty, the trial court complied with GCR 1963, 785.7. A knowing and understanding waiver was implicit in the plea procedure.

Defendant’s argument that the felony-firearm statute, MCL 750.227b; MSA 28.424(2), is unconstitutional because it amended a large number of statutes without re-enactment and publication, contrary to Const 1963, art 4, § 25, is without merit, since amendment by implication is. not the evil sought to be avoided by the constitutional provision. Advisory Opinion re Constitutionality of 1972 PA 294, 389 Mich 441, 471-474; 208 NW2d 469, 476-478 (1973).

Defendant also argues that his felony-firearm conviction must be set aside because it violates constitutional prohibitions against double jeopardy. US Const, Am V, Const 1963, art 1, § 15.

The double jeopardy clause provides that no person shall "be subject for the same offense to be twice put in jeopardy”.

"[The clause] serves principally as a restraint on courts and prosecutors. The legislature remains free under the [d]ouble [j]eopardy [c]lause to define crimes and fix punishments; but once the legislature has acted courts may not impose more than one punishment for the same offense and prosecutors ordinarily may not attempt to secure that punishment in more than one trial.” Brown v Ohio, 432 US 161, 165; 97 S Ct 2221, 2225; 53 L Ed 2d 187, 193-194 (1977).

Because many statutory crimes are duplicative, it is well established that separate statutory crimes may be the "same offense” under the double jeopardy clause, even though they are not identical in either constituent elements or actual proof. Brown v Ohio, supra, at 164; 97 S Ct at 2224; 53 L Ed 2d at 193. Each case ultimately turns upon whether the Legislature intended a particular act to be punished by only one or more statutes. See Gore v United States, 357 US 386; 78 S Ct 1280; 2 L Ed 2d 1405 (1958). Unfortunately, it is rarely possible to divine legislative intent in this area, as the multiple punishment issue rarely receives explicit legislative consideration. Gore v United States, supra, at 394; 78 S Ct at 1285; 2 L Ed 2d at 1411 (Warren, C. J., dissenting). As a consequence the courts have developed tests to determine whether separate statutory crimes are the "same offense”. See, e.g., Harris v Oklahoma, 433 US 682; 97 S Ct 2912; 53 L Ed 2d 1054 (1977), Brown v Ohio, supra, Blockburger v United States, 284 US 299; 52 S Ct 180; 76 L Ed 306 (1932), People v Stewart (On Rehearing), 400 Mich 540; 256 NW2d 31 (1977), People v Martin, 398 Mich 303; 247 NW2d 303 (1976).

Although it may be argued with some force that application of the above tests to the instant case would indicate the presence of a double jeopardy problem, but see, e.g., Kowalski v Parratt, 533 F2d 1071 (CA 8, 1976), cert den 429 US 844; 97 S Ct 125; 50 L Ed 2d 115 (1976), resort need not be had to the tests where the legislative intent is, as here, apparent.

The statute applies by its terms to all felonies except those explicitly excluded.

"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 [MCLA 750.227; MSA 28.424 — carrying a concealed weapon] or section 227a [MCLA 750.227a; MSA 28.424 (1) — unlawful possession of a pistol by a licensee], is guilty of a felony, and shall be imprisoned for 2 years.” MCL 750.227b; MSA 28.424(2).

Expressio unius est exclusio alterius. "Felony” includes robbery armed. MCL 750.529; MSA 28.797. By this statute the Legislature has attempted to make certainty of minimal punishment the standard where firearms are involved in the commission of felonies. The minimal punishment purpose applies with equal force to robbery armed crimes as to other crimes. As it cannot be doubted that the Legislature could have amended the robbery armed statute to add as a proviso that there be a minimal punishment where the dangerous weapon is a firearm, without offending the double jeopardy clause, see Gore v United States, supra, there is no double jeopardy impediment to its attainment of the same goal by separate statute.

Since the Legislature intended the type of result obtained in the instant case, the convictions do not violate double jeopardy protection.

Affirmed.

Bronson, J.

(concurring). I concur in the opinion of Judge R. B. Burns, but write separately to state my reasoning.

At issue in this case is the meaning of the constitutional prohibition of double jeopardy. Double jeopardy has three different aspects: it bars a second prosecution for the same offense after acquittal, it bars a second prosecution for the same offense after conviction, and it protects against multiple punishment for the same offense. North Carolina v Pearce, 395 US 711; 89 S Ct 2072; 23 L Ed 2d 656 (1969).

It is the last protection — that against multiple punishment — with which we are here concerned.

My research has revealed that much of the discussion of the constitutional prohibition on multiple punishment fails to satisfactorily explicate the underpinnings of that protection. See Note: Twice in Jeopardy, 75 Yale LJ 262 (1965). The courts have failed to address the vital question: why is it wrong to cumulate punishment? Id. at 301.

The protection against multiple punishment is a restraint on courts and prosecutors. Brown v Ohio, 432 US 161; 97 S Ct 2221; 53 L Ed 2d 187 (1977). Note, supra, at 304-308. This is because the Legislature is the proper institution to define offenses and provide for their punishment. The Legislature often provides for different statutory offenses which could apply to the same act. In such a case, the prohibition on multiple punishment prevents courts from cumulating punishment where it appears that the Legislature did not intend that the defendant be cumulatively punished. See Gore v United States, 357 US 386; 78 S Ct 1280; 2 L Ed 2d 1405 (1958). As an aid to ascertaining the Legislature’s intent, courts have applied certain rules of construction. For example, it is presumed that the Legislature did not intend to punish cumulatively a greater and necessarily included offense. Kirchheimer, The Act, the Offense and Double Jeopardy, 58 Yale LJ 513 (1949); Note, supra, at 318-319. In short, a "rule of lenity” prohibits multiple punishment where the legislative intent is unclear or doubtful. See People v Nelson, 79 Mich App 303; 261 NW2d 299 (1977).

Where the legislative intent regarding punishment is clear, however, there is no multiple punishment problem. Cf. People v Nelson, supra. The danger against which the constitutional prohibition is directed is not present; the court is not multiplying punishment.

In the case at bar, the Legislature has provided, in clear and unmistakable terms, for two convictions and a minimum two-year sentence where a person commits or attempts to commit a felony while in possession of a firearm. Because the legislative intent is clear, there can be no multiple punishment problem; there is no possibility of the court cumulating punishment. Vacating a conviction in this case would undermine the acknowledged function of the Legislature: to define and set the punishment for offenses. It cannot be contended that an individual needs constitutional double jeopardy protection against the Legislature’s clear exercise of its proper penological function.

This is not, as the dissent asserts, a case of the court abdicating its proper constitutional function. Rather, the problem is one of defining the constitutional protection against multiple punishment. I believe that protection only prevents the courts and prosecutors from multiplying punishment absent a clear legislative directive prescribing punishment. Where the statutory scheme evidences a clear legislative intent that a defendant be punished under separate statutes, there is no multiple punishment problem. Thus, it is illogical to speak of the court abandoning its function by deferring to the Legislature where the Legislature’s intent is manifest.

Thus, I agree that both convictions should be affirmed in the case at bar.

I also believe that two aspects of the dissent deserve comment.

First, the dissent, applying the Blockburger test, finds that armed robbery and felony-firearm are the "same offense”. I disagree.

Under Blockburger, two statutory provisions define different offenses if: "each statute requires proof of an additional fact which the other does not”. 284 US at 304 (emphasis added). Clearly, felony-firearm requires proof of a fact not required to convict of armed robbery: possession of a firearm. Armed robbery also requires the proof of facts not required for conviction of felony-firearm, e.g., a robbery. A robbery need not be proved to establish a felony-firearm violation; any felony will suffice. Therefore, I would find that armed robbery and felony-firearm are not the "same offense” under Federal constitutional law.

The Michigan Supreme Court, in People v Stewart (On Rehearing), 400 Mich 540; 256 NW2d 31 (1977), and People v Martin, 398 Mich 303; 247 NW2d 303 (1976), held that a defendant may not be convicted, of two crimes where, on the facts of the particular case, the trier of fact must necessarily find him guilty of one in order to find him guilty of the other. People v Terry Alexander, 82 Mich App 621; 267 NW2d 466 (1978). However, those cases were decided in the context of convictions for possession and sale or delivery of heroin. As there was no contention that the Legislature intended two convictions for these offenses, the Court’s omission of reference to legislative intent is understandable. Martin and Stewart thus apply to cases in which there is no express legislative intent to allow multiple conviction. Those cases do not apply to the case at bar, where that intent is explicit.

Second, the dissent hints that Michigan courts interpret the Michigan constitutional protection against multiple punishment more restrictively than its substantially similar Federal counterpart. I agree that Martin and Stewart appear to go beyond the Blockburger rule. However, where the intent of the Legislature is clear, I can ascertain no identifiable state policy mandating a more restrictive interpretation of the double jeopardy clause.

D. F. Walsh, J.

(dissenting). I must dissent from the majority holding that the application of the felony-firearm statute, MCL 750.227b; MSA 28.424(2), in this case does not violate the double jeopardy clauses of the United States and Michigan Constitutions.

The pertinent statutory provision is as follows:

"Sec. 227b. (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.
"(3) The term of imprisonment imposed under this section shall not be suspended. The person subject to the sentence mandated by this section shall not be eligible for parole or probation during the mandatory term imposed pursuant to subsection (1).” (Footnote added.)

In order to convict a defendant under this statute, it must first be demonstrated that he committed or attempted to commit a felony. By definition that felony is a lesser included offense of the felony-firearm violation because it is impossible to commit the latter without committing the former. People v Ora Jones, 395 Mich 379; 236 NW2d 461 (1975). That much apparently is conceded by the majority opinion. For the reasons hereinafter stated I would hold that it inescapably follows that conviction and sentencing for both the felony-firearm violation and for the underlying felony is precluded by the double jeopardy provisions of both the Federal and the Michigan Constitutions.

I.

Analysis of this issue requires a two-step inquiry. We must first determine whether the Legislature intended cumulative conviction and punishment under both statutory provisions. It is only if this preliminary inquiry is answered in the affirmative that we need consider whether effectuation of that intent violates the constitutional prohibition against multiple punishment for the "same offense”. Simpson v United States, 435 US 6; 98 S Ct 909; 55 L Ed 2d 70 (1978). In this case an affirmative answer to the first question is clear on the face of the felony-firearm statute. We must, therefore, determine the constitutional propriety of the Legislature’s intended result.

The Federal constitution provides in pertinent part:

" * * * [N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb * * * ” US Const, Am V.

That provision protects against multiple punishment for the same offense. Simpson, supra, Jeffers v United States, 432 US 137; 97 S Ct 2207; 53 L Ed 2d 168 (1977), North Carolina v Pearce, 395 US 711; 89 S Ct 2072; 23 L Ed 2d 656 (1969).

The test for determining whether two separately defined crimes constitute the "same offense” is the so-called Blockburger test. Simpson, supra, Brown v Ohio, 432 US 161; 97 S Ct 2221; 53 L Ed 2d 187 (1977).

"The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not.” Blockburger v United States, 284 US 299, 304; 52 S Ct 180, 182; 76 L Ed 306, 309 (1932). (Emphasis added.)

This test emphasizes the elements of the two crimes. Brown, supra. Unless the statutes involved satisfy that test the double jeopardy clause of the United States Constitution forbids cumulative punishment. Simpson, supra, Brown, supra. The Blockburger test has in fact been applied by courts squarely confronting the double jeopardy implications of statutes similar to the one before us. Kowalski v Parratt, 533 F Supp 1071 (CA 8, 1976), cert den 429 US 844; 97 S Ct 125; 50 L Ed 2d 115 (1976), State v Saxon, 193 Neb 278; 226 NW2d 765 (1975), Jones v Commonwealth, 218 Va 18; 235 SE2d 313 (1977).

Applying Blockburger to the statutes before us I would conclude that the felony-firearm violation and the armed robbery upon which it was premised do not constitute "separate offenses”. Conviction for the armed robbery does not require proof of any facts unnecessary to the felony-firearm conviction because every element of the crime of armed robbery (or whatever felony applies in a given case) must also be proven to establish violation of the felony-firearm statute. Accordingly, I would hold that the cumulative punishment imposed by the statute violates the Federal constitutional prohibition against cumulative punishment for the "same offense”.

I must strongly disagree with the majority’s statement that the constitutionally guaranteed protection against double jeopardy "ultimately turns upon whether the Legislature intended a particular act to be punished by only one or more statutes”. (Emphasis added.)

First of all, to assert that the constitutionality of an act of the Legislature is to be determined by reference to the Legislature’s intent in enacting it, is to assert that the Legislature may limit the operation of the constitution. Certainly one of the most fundamental principles of constitutional government is that the constitution limits the power of the Legislature and not vice versa as the majority would seem to hold.

Secondly, United States Supreme Court decisions do not support the majority’s position. The pertinent case law stands for the proposition that legislative intent is considered in order to avoid, if possible, the constitutional issue, not to resolve it. The first question is always whether the Legislature intended the involved statutes to operate cumulatively. But that is the beginning of the inquiry, not the end of it. If cumulative application was intended, the statutes must be examined in order to determine whether they define the "same offense” within the meaning of the constitutional prohibition. Explication of this two step analysis was set forth in a recent case:

"In Blockburger v United States, 284 US 299, 76 L Ed 306, 52 S Ct 180 (1932), this Court set out the test for determining 'whether two offenses are sufficiently distinguishable to permit the imposition of cumulative punishment.’ Brown v Ohio, 432 US 161, 166, 53 L Ed 2d 187, 97 S Ct 2221 (1977). We held that '[t]he applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.’ Blockburger v United States, supra, at 304, 76 L Ed 306, 52 S Ct 180. See also Brown v Ohio, supra, at 166, 53 L Ed 2d 187, 97 S Ct 2221; Ianelli v United States, 420 US 770, 43 L Ed 2d 616, 95 S Ct 1284 (1975); Gore v United States, 357 US 386, 2 L Ed 2d 1405, 78 S Ct 1280 (1958). The Blockburger test has its primary relevance in the double jeopardy context, where it is a guide for determining when two separately defined crimes constitute the 'same offense’ for double jeopardy purposes. Brown v Ohio, supra.
"Cases in which the Government is able to prove violations of two separate criminal statutes with precisely the same factual showing, as here, raise the prospect of double jeopardy and the possible need to evaluate the statutes in light of the Blockburger test. That test, the Government argues, is satisfied in these cases. We need not reach the issue. Before an examination is made to determine whether cumulative punishments for the two offenses are constitutionally permissible, it is necessary, following our practice of avoiding constitutional decisions where possible, to determine whether Congress intended to subject the defendant to multiple penalties for the single criminal transaction in which he engaged. Jeffers v United States, 432 US 137, 155, 53 L Ed 2d 168, 97 S Ct 2207 (1977).” Simpson v United States, 435 US 6, 11-12; 98 S Ct 909, 912-913; 55 L Ed 2d 70, 75-76. (Emphasis added.) (Footnotes omitted.)

The majority’s constitutional analysis, therefore, is, in my judgment, devoid of any logical or legal support.

II.

The Michigan Constitution provides in pertinent part:

"No person shall be subject for the same oifense to be twice put in jeopardy.” Const 1963, art 1, § 15.

That provision, like its Federal counterpart, protects against multiple punishment for the "same oifense”. People v Stewart (On Rehearing), 400 Mich 540; 256 NW2d 31 (1977), People v Martin, 398 Mich 303; 247 NW2d 303 (1976).

Although the Michigan double jeopardy clause is substantially identical to the double jeopardy clause of the United States Constitution in terms of the interests thereunder protected, in application, the Michigan Supreme Court has not hesitated to adopt more protective standards than those compelled by the Federal constitution. Compare People v White, 390 Mich 245; 212 NW2d 222 (1973) and People v Cooper, 398 Mich 450; 247 NW2d 866 (1976) with Brown v Ohio, 432 US 161; 97 S Ct 2221; 53 L Ed 2d 187 (1977) and Abbate v United States, 359 US 187; 79 S Ct 666; 3 L Ed 2d 729 (1959). Similarly, our Supreme Court recently has made it clear that where a defendant is convicted of two offenses, one of which is included in the other, the double jeopardy clause prohibits not only cumulative punishment but also conviction for both offenses.

"A defendant may be charged and tried for each act that constitutes a separate crime. However, when tried for an act which includes lesser offenses, if the jury finds guilt of the greater, the defendant may not also be convicted separately of the lesser included offense. The prohibition against multiple punishment for the same crime cannot be avoided by the form of the charge.” People v Martin, supra, at 309. (Emphasis added.)

In both Stewart and Martin the Supreme Court vacated convictions for lesser included offenses holding that they violated the double jeopardy prohibition against multiple punishment.

For purposes of the instant case it need not be decided whether Stewart and Martin extend the definition of included offenses to include those factually, although not legally, necessarily included in a greater charge. Compare People v Terry Alexander, 82 Mich App 621; 267 NW2d 466 (1978), with People v Risher, 78 Mich App 431; 260 NW2d 121 (1977). As I read Stewart and Martin, those cases at a minimum preclude conviction for both a greater offense and one legally necessarily included under People v Ora Jones, supra. See People v Wilder, 82 Mich App 358; 266 NW2d 847 (1978). Insofar as the underlying felony is necessarily included in the felony-firearm violation, I would hold that under the decisions of the Michigan Supreme Court, the double jeopardy clause of the Michigan Constitution prohibits conviction for both armed robbery and possession of a firearm in the course of that robbery. Because it is clear that the factual basis established the defendant’s guilt of both offenses I would vacate the conviction for the felony-firearm violation and the sentence therefor imposed. See, People v Stewart, supra, at 550, n 2.

I would affirm in part, and reverse in part.

       For purpose of analysis we assume the double jeopardy protection under state and Federal constitutions is equivalent.

       US Const Am V; Const 1963, art 1, § 15.

       The multiple punishment protection of the double jeopardy clause was recognized very early in American jurisprudence. See Ex parte Lange, 85 US (18 Wall) 163; 21 L Ed 872 (1874), North Carolina v Pearce, 395 US 711; 89 S Ct 2072; 23 L Ed 2d 656 (1969).
      The context in which the multiple punishment issue arose in Lange was that Lange was sentenced to a statutory maximum term of one year in prison without being allowed credit for time served under a previous invalid sentence for the same conviction. This was held to be unconstitutional multiple punishment. In Pearce, the Court held that the constitutional multiple punishment protection requires that punishment already exacted be fully credited in imposing sentence after a new conviction for the same offense.

        eases involving multiple punishment issues similar to that in the case at bar have found no constitutional violation. See Kowalski v Parratt, 533 F2d 1071 (CA 8, 1976), cert den 429 US 844; 97 S Ct 125; 50 L Ed 2d 115 (1976), State v Saxon, 193 Neb 278; 226 NW2d 765 (1975), Jones v Commonwealth, 218 Va 18; 235 SE2d 313 (1977).

       Part of the problem is that courts have seized upon the United States Supreme Court’s language in cases not involving the instant issue. For example, the dissent quotes Simpson v United States, 435 US 6; 98 S Ct 909; 55 L Ed 2d 70 (1978), which simply declined to reach a double punishment issue where it found that Congress did not intend separate punishment for a single transaction, for the proposition that Blockburger v United States, 284 US 299; 52 S Ct 180; 76 L Ed 306 (1932), applies even where Congress clearly intended cumulative punishment. I find the dicta in Simpson unpersuasive authority for that proposition.

       "[T]he Fifth Amendment double jeopardy guarantee serves principally as a restraint on courts and prosecutors. The legislature remains free under the Double Jeopardy Clause to define crimes and fix punishments; but once the legislature has acted courts may not impose more than one punishment for the same offense and prosecutors ordinarily may not attempt to secure that punishment in more than one trial.” Brown v Ohio, 432 US 161, 165; 97 S Ct 2221, 2225; 53 L Ed 2d 187, 193-194 (1977).

       The constitutional prohibition on cruel and unusual punishment, US Const, Am VIII, and the due process guarantee, US Const, Am V, and their state constitutional counterparts, provide adequate restraints on the Legislature’s exercise of its power to define offenses and prescribe punishments.
      I also note that, under the dissent’s analysis, a sentence enhancement statute which did not provide for a second conviction would pose no double jeopardy problem.

        Blockburger v United States, 284 US 299; 52 S Ct 180; 76 L Ed 306 (1932).

       MCL 750.227, 750.227a; MSA 28.424, 28.424(1).

       "If two offenses are the same under this test for purposes of barring consecutive sentences at a single trial, they necessarily will be the same for purposes of barring successive prosecutions. See In re Nielsen, 131 US 176, 187-188, 9 S Ct 672, 675-676, 33 L Ed 118 (1889); cf. Gavieres v United States, 220 US 338, 31 S Ct 421, 55 L Ed 489 (1911). Where the judge is forbidden to impose cumulative punishment for two crimes at the end of a single proceeding, the prosecutor is forbidden to strive for the same result in successive proceedings. Unless 'each statute requires proof of an additional fact which the other does not,’ Morey v Commonwealth, 108 Mass 433, 434 (1871), the Double Jeopardy Clause prohibits successive prosecutions as well as cumulative punishment.” Brown v Ohio, 432 US 161, 166; 97 S Ct 2221, 2225-2226; 53 L Ed 2d 187, 194-195 (1977).

       Although the courts in Jones and Saxon were analytically correct in their approach, they reached erroneous conclusions due to their misstatement of the Blockburger rule as requiring merely that one offense require proof of a fact which the other does not.
      The Kowalski decision was premised upon a finding that robbery was not a lesser included offense of using a firearm in the commission of a robbery. Besides being logically suspect, that determination is no longer good law (if ever it was) in view of the United States Supreme Court’s subsequent definition of lesser included offenses for double jeopardy purposes:
      "Here the Ohio Court of Appeals has authoritatively defined the elements of the two Ohio crimes: joyriding consists of taking or operating a vehicle without the owner’s consent, and auto theft consists of joyriding with the intent permanently to deprive the owner of possession. App. 22. Joyriding is the lesser included offense. The prosecutor who has established joyriding need only prove the requisite intent in order to establish auto theft; the prosecutor who has established auto theft necessarily has established joyriding as well.
      "Applying the Blockburger test, we agree with the Ohio Court of Appeals that joyriding and auto theft, as defined by the court, constitute 'the same statutory offense’ within the meaning of the Double Jeopardy Clause. App. 23. For it is clearly not the case that 'each statute requires proof of an additional fact which the other does not’. 284 US, at 304, 52 S Ct, at 182. As is invariably true of a greater and lesser included offense, the lesser offense — joyriding—requires no proof beyond that which is required for conviction of the greater— auto theft. The greater offense is therefore by definition the 'same’ for purposes of double jeopardy as any lesser offense included in it.
      "This conclusion merely restates what has been this Court’s understanding of the Double Jeopardy Clause at least since In re Nielsen was decided in 1889. In that case the Court endorsed the rule that
      " 'where * * * a person has been tried and convicted for a crime which has various incidents included in it, he cannot be a second time tried for one of those incidents without being twice put in jeopardy for the same offense.’ 131 US, at 188; 9 S Ct, at 676; 33 L Ed at 118.” Brown v Ohio, 432 US 161, 167-168; 97 S Ct 2221, 2226; 53 L Ed 2d 187, 195-196. See also Harris v Oklahoma, 433 US 682; 97 S Ct 2912; 53 L Ed 2d 1054 (1977).

       Both the majority in the instant case and the panel in People v Nelson, 79 Mich App 303; 261 NW2d 299 (1977), misconstrue Justice Warren’s lone dissent in Gore v United States, 357 US 386; 78 S Ct 1280; 2 L Ed 2d 1405 (1958), as supporting their position. In citing the Chief Justice’s opinion out of context, my brethren have overlooked two salient features of the Gore decision.
      The first is that Justice Warren found that the legislative intent in enacting the statutes in question was not to authorize cumulative punishment under them. Having reached that conclusion, there was no need for him to go further and consider the constitutional question.
      Second, the majority opinion which did address the constitutional issue, stated that Blockburger was the proper test to determine whether the involved statutes defined "separate offenses” as opposed to "merely different descriptions of the same offense”. The other dissenting opinions also reasoned from that premise.

       It is no answer to say, as do my brothers, that no constitutional infirmity exists because the Legislature could have achieved its purpose via a pure sentence enhancement statute. Their argument is erroneous in that it assumes that there would be no difference between the instant statute and the one that they propose. That assumption is factually incorrect and legally invalid.
      It is factually incorrect because there are collateral consequences that attach to a separate felony conviction which do not exist with mere sentence enhancement: for example, parole consideration, impeachment at subsequent trials, and habitual offender treatment. Stewart, supra; Martin, supra. It is legally invalid because our Supreme Court has recognized that "even the entry of judgment and the imposition of a suspended sentence of imprisonment is additional punishment”. Martin, supra, at 311.
      Furthermore, I believe that the proposition that arguably unconstitutional legislation should be given effect where its purpose could be attained in a constitutional manner to be a dangerous and unprecedented abdication of the function of judicial review.


source: Caselaw Access Project

author: Bashara, P. J. Beasley, J. D. E. Holbrook, Jr., J.

license: Public Domain

text:
    PEOPLE v McDOWELL
    Docket No. 77-2742.
    Submitted December 20, 1977, at Detroit.
    Decided September 20, 1978.
    Leave to appeal applied for.
    William G. McDowell was arrested and charged with assault with intent to commit murder and with possession of a firearm during the commission of a felony. Both charges are based on the same alleged facts — that the defendant fired a gun through the door of a van occupied by eight off-duty police officers, one of whom was wounded in the foot. The defendant’s motion to quash one or both counts or, alternatively, to compel the prosecutor to elect between them was denied, Recorder’s Court of Detroit, Albert P. Horrigan, J. The defendant appeals by leave granted, claiming that he would be placed twice in jeopardy for the same offense by having to defend against prosecution on both counts. Held:

    An examination of the felony-firearm statute unequivocally demonstrates the intent of the Legislature to define and prescribe punishment for an offense separate and distinct from the substantive felonies to which it applies. The felony-firearm statute is inoperable only if viewed as a separate distinct felony statute. The statute should be viewed as a sentence enhancement or sentence augmenting statute. The trial court’s denial of the defendant’s motion to quash was proper.

      References for Points in Headnotes
    [1] 16 Am Jur 2d, Constitutional Law § 332.
    21 Am Jur 2d, Criminal Law § 166.
    Limitations under double jeopardy clause of Fifth Amendment upon state criminal prosecutions — Supreme Court cases. 25 L Ed 2d 968.
    [2, 3, 5, 6, 9] 21 Am Jur 2d, Criminal Law §§ 182, 185, 187-189.
    Due process as violated by successive state trials for single offense or for multiple offenses of the same character, committed simultaneously — Supreme Court cases. 2 L Ed 2d 2020.
    [4, 5] 73 Am Jur 2d, Statutes § 145.
    [5] 73 Am Jur 2d, Statutes §§ 294, 295.
    [7] 16 Am Jur 2d, Constitutional Law § 137 et seq.

    73 Am Jur 2d, Statutes § 37.
    [8] 73 Am Jur 2d, Statutes § 200.
    [10] 21 Am Jur 2d, Criminal Law §§ 175, 176.
    [11, 12] 21 Am Jur 2d, Criminal Law §§ 188, 189.
    [13, 14] 21 Am Jur 2d, Criminal Law §§ 185-187, 189, 212.
    [15] 21 Am Jur 2d, Criminal Law §§ 165, 166.

      Affirmed. (Beasley, J., concurred in result.)
    D. E. Holbrook, Jr., J., concurred in the result but he would hold that the double jeopardy issue is prematurely raised because the defendant has not been placed in jeopardy once, let alone twice, at this point. The mere fact that the defendant is charged with both offenses does not put him twice in jeopardy.
    He believes that if the defendant were ultimately convicted of both offenses- there would be a double jeopardy violation because assault with intent to commit murder is a lesser included offense of the felony-firearm crime under the circumstances of this case and the defendant may not be convicted of both the lesser and the greater offense. He would hold that a statute may not deprive a citizen of fundamental constitutional rights, no matter how clear the legislative intent.
    Opinion of Bashara, P. J.
    1. Constitutional Law — Double Jeopardy.

      Michigan’s double jeopardy provision is coterminous in operational scope with that of its Federal counterpart.

    2. Constitutional Law — Double Jeopardy — Due Process — Lesser Included Offenses — Fundamental Fairness.

      Standards for a determination of the "same offense’’ for double jeopardy purposes require an examination of each statutory offense to determine whether one requires proof of an additional fact which the other does not; under this theory, merger takes place where one of two offenses charged is a necessarily lesser included offense of the other and convictions for both, arising out of the same act, are constitutionally impermissible.

    3. Constitutional Law — Double Jeopardy — Felony-Firearm— Necessarily Included Lesser Offenses.

      Convictions of both felony-ñrearm and the underlying felony violate constitutional guarantees against double jeopardy in that the underlying felony will always be a necessarily included lesser offense of felony-ñrearm; however, this does not mean that the Court of Appeals ñnds the felony-ñrearm statute, when considered in its entirety, unconstitutional.

    4. Statutes — Statutory Construction — Legislative Intent — Letter of Law — Spirit of Law.

      The primary rule governing statutory construction is ñrst and

      foremost to ascertain and give effect to the manifest intent of the Legislature; where the real design of the Legislature in ordaining a statute, although not precisely expressed, is yet plainly perceivable or may be ascertained with reasonable certainty, the language of the statute must be given such a construction as will carry that design into effect, even though, in so doing, the exact letter of the law will be sacriñced, or though the construction be, indeed, contrary to the letter.

      5. Statutes — Criminal Law — Legislative Intent — Felony-Firearm Statute — Statutory Construction.

      The legislative intent behind the felony-fírearm statute so clearly indicates a mandatory additional penalty when a firearm is used or possessed during the commission of a felony that it is incumbent upon the Court of Appeals to uphold, if at all possible, such a clear statutory mandate, within the limits of constitutional proscription.

    6. Statutes — Criminal Law — Felony-Firearm Statute — Sentence Enhancement Statute — Separate Distinct Felony.

      The felony-fírearm statute is a sentence enhancement or sentence augmenting statute and should be construed to be inoperable only as a separate distinct felony.

    7. Constitutional Law — Statutes—Presumption of Constitutionality.

      Every legislative act is presumed to be constitutional; the courts are required, whenever possible, to construe in favor of validity.

    8. Criminal Law — Constitutional Law — Felony-Firearm Statute —Removal of Offensive Language — Act Complete Within Itself.

      The felony-fírearm statute with its offensive language removed is still an act complete within itself; it does not require references to other statutes for its meaning, nor does it alter or amend another statute by references to title; in scope and application it can be analogized to the habitual offender statute which has been found to be constitutional; as such, it is not constitutionally offensive.

    Opinion of Beasley, J.
    9. Constitutional Law — Criminal Law — Statutes—Felony-Firearm Statute.

      The felony-firearm statute is constitutional.

      Opinion of D. E. Holbrook, Jr., J.
    10. Constitutional Law — Jeopardy—Trier of Fact — Attachment of Jeopardy.

      A criminal defendant is not placed in jeopardy until he is put to trial before the trier of facts; jeopardy does not attach until the jury is impaneled and sworn or, in a bench trial, until the court begins to hear evidence.

      11. Constitutional Law — Double Jeopardy — Single Transaction— Double Punishment — Motion to Quash.

      The mere fact that a defendant is charged with two crimes arising out of a single transaction does not put him twice in jeopardy, even if it is true that conviction on both counts would constitute double punishment; therefore, a defendant’s appeal, raising the issue of double jeopardy, from a trial court’s denial of the defendant’s motion to quash one or both counts arising out of a single transaction is premature because the defendant has not been placed in jeopardy.

    12. Criminal Law — Single Transaction — Legislative Intent — Necessarily Lesser Included Offenses — Double Punishment.

      A single act may violate more than one criminal statute where this is the clear legislative intent; however, where one of two offenses charged is necessarily a lesser included offense of the other, convictions for both based on the same act amount to unconstitutional double punishment.

    13. Criminal Law — Necessarily Lesser Included Offenses.

      A necessarily lesser included offense is an offense where it is impossible to commit the greater without ñrst having committed the lesser; some offenses are never necessarily included in others on any set of facts because they share no elements; other offenses are always necessarily included in others because one consists of all of the elements of the other, plus more.

    14. Criminal Law — Felony-Firearm—Lesser Included Offenses.

      The felony of the "felony-ñrearm” crime consists of two elements: (1) carrying or possession of a ñrearm, (2) while committing or attempting to commit a felony other than carry a concealed weapon; where the carrying of a ñrearm is unrelated to the underlying felony, punishment for committing the underlying felony and also carrying a ñrearm while doing so is not double punishment; but where a ñrearm is used to commit the underlying felony, the underlying felony is necessarily included in the felony-ñrearm crime because it is impossible to commit a

      felony by using a ñrearm without at the same time possessing or carrying the ñrearm during the felony.

    15. Constitutional Law — Double Jeopardy — Legislative Intent— Fundamental Constitutional Rights.

      Double jeopardy questions should not be resolved through an examination of legislative intent; a statute cannot deprive a citizen of fundamental constitutional rights.

      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.

      Curtis G. Rundell, II, P. C. for defendant on appeal.
    Before: Bashara, P. J., and Beasley and D. E. Holbrook, Jr., JJ.
   Bashara, P. J.

Our brother’s opinion delineates the salient facts upon which the defendant bases his constitutional challenge to the felony-firearm statute. However, we neither conclude that the question is prematurely presented nor that the statute, when construed, is completely violative of defendant’s constitutional immunity from double jeopardy.

The denial of defendant’s motion to quash the felony-firearm charge placed the case in a posture where trial on both charges was imminent. The constitutional question involved was certified here, and we granted leave to appeal. That question is of sufficient moment to the defendant and the ultimate termination of this action against him that a determination on the merits, which have been fully briefed and argued, is warranted.

Initially, we observe that our state double jeopardy provision is coterminous in operational scope with that of its Federal counterpart. People v Alvin Johnson, 396 Mich 424, 430, n 2; 240 NW2d 729 (1976), In re Ascher, 130 Mich 540, 545; 90 NW 418 (1902). Both clauses afford protection from multiple prosecutions and multiple punishment for the "same offense”. North Carolina v Pearce, 395 US 711; 89 S Ct 2072; 23 L Ed 2d 656 (1969).

Standards for determination of the "same offense” for double jeopardy purposes were enumerated in Blockburger v United States, 284 US 299; 52 S Ct 180; 76 L Ed 306 (1932). The test developed in Blockburger required an examination of the provisions of each statutory offense to determine whether one required proof of an additional fact which the other did not.

Michigan has held that under this theory, where one of two offenses charged is a necessarily lesser included offense of the other, merger takes place and convictions for both arising out of the same act are constitutionally impermissible. People v Martin, 398 Mich 303; 247 NW2d 303 (1976), Peo ple v Stewart (On Rehearing), 400 Mich 540; 256 NW2d 31 (1977).

We must concede, in light of the foregoing precedent and the analysis therefrom, that conviction of both felony-firearm and the underlying felony violates double jeopardy in that the underlying felony will always be a necessarily lesser included offense of felony-firearm.

However, this does not mean that we find the statute, when considered in its entirety, unconstitutional. An important element that cannot be overlooked in statutory construction is the essential ingredient of legislative intent. The primary rule governing statutory interpretation is first and foremost to ascertain and give effect to the manifest intent of the Legislature. Simpson v United States, 435 US 6; 98 S Ct 909; 55 L Ed 2d 70 (1978), Gore v United States, 357 US 386; 78 S Ct 1280; 2 L Ed 2d 1405 (1958).

The intent of the statute so clearly indicates a mandatory additional penalty when a firearm is used or possessed during the commission of a felony that it is incumbent upon this Court to uphold, if at all possible, such a clear statutory mandate, within the limits of constitutional proscription. Purview of the legislative history emphasizes certainty of punishment as the prevailing consideration in enacting the statute under review.

Rather than strike down the statute in its entirety, we construe it to be inoperable only as a separate distinct felony statute. We view it rather as a sentence enhancement or sentence augmenting statute.

Such an interpretation has precedential sanctions in this state. In Dickerson v Heide, 69 Mich App 303, 308-309; 244 NW2d 459 (1976), this Court stated:

"We find this to be an especially cogent example of a situation where literal application of a statute would cause an unfortunate and unintended result and where rejection of the literal dictates will further the intent of the statute.”

Every legislative act is presumed to be constitutional. The courts are required, wherever possible, to construe in favor of validity. Oftentimes it is necessary that the spirit and purpose of the statute should prevail over its strict letter, Thomas v Consumers Power Co, 58 Mich App 486, 495; 228 NW2d 786 (1975), People v Otis Adams, 34 Mich App 546, 555; 192 NW2d 19 (1971).

Our Michigan Supreme Court in Williams v Secretary of State, 338 Mich 202, 208; 60 NW2d 910 (1953), quotes with approval a particularly compelling maxim from Endlich on the Interpretation of Statutes, § 295:

" ' "Effect to be Given to True Intent of Act. Modification of Language. — Where the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship or injustice, presumably not intended, a construction may be put upon it, which modifies the meaning of the words, and even the structure of the sentence. This is done, sometimes, by giving an unusual meaning to particular words; sometimes by altering their collocation; or by rejecting them altogether; or by interpolating other words; under the influence, no doubt, of an irresistible conviction that the legislature could not possibly have intended what its words signify, and that the modifications thus made are mere corrections of careless language, and really give the true intention. The ascertainment of the latter is the cardinal rule, or rather the end and object, of all construction; and where the real design of the legislature in ordaining a statute, although it be not precisely expressed, is yet plainly perceivable, or ascertained with reasonable certainty, the language of the statute must be given such a construction as will carry that design into effect, even though, in so doing, the exact letter of the law be sacrifíced, or though the construction be, indeed, contrary to the letter.” ’ ” (Emphasis supplied.)

See also Grand Rapids v Crocker, 219 Mich 178, 183; 189 NW 221 (1922).

The statute, with the offensive language removed, is still an act complete within itself. It does not require references to other statutes for its meaning, nor does it alter or amend another statute by reference to title. As such, it is not offensive to our state constitution. In scope and application it can be analogized to the habitual offender statute which the Michigan Supreme Court has found to be constitutional. In re Pardee, 327 Mich 13; 41 NW2d 466 (1950), cert den, 339 US 961; 70 S Ct 989; 94 L Ed 1371 (1950), People v Hendrick, 398 Mich 410; 247 NW2d 840 (1976).

Critics of the view herein embraced may contend that our decision invades the province of the Legislature. To the contrary, we sincerely believe that we have sustained the obvious intent of the Legislature by exercising proper judicial construction.

Affirmed.

Beasley, J.

(concurring). I concur with Judge Bashara in affirming.

My reasons for upholding the constitutionality of the felony-firearm statute as now constituted are set forth in People v Walter Johnson, 85 Mich App 654; 272 NW2d 605 (1978).

D. E. Holbrook, Jr., J.

(concurring in result). The defendant is charged with assault with intent to commit murder, MCL 750.83; MSA 28.278, and with possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). Both charges are based on the same allegation— that the defendant fired a gun through the door of a van occupied by eight off-duty police officers, one of whom was wounded in the foot. Defendant appeals from the denial of his motion to quash one or both of the counts or, alternatively, to compel the prosecutor to elect between them. The trial judge did conclude that the case involves a controlling question of law as to which there is substantial ground for difference of opinion, and that an appeal from denial of the motion may materially advance the ultimate termination of the litigation. GCR 1963, 806.3(l)(a)(ii).

Defendant contends that in the circumstances of his case, he would be placed twice in jeopardy by having to defend against prosecution on both counts. I conclude that this issue is prematurely raised. The Federal and state constitutions provide that a criminal defendant cannot be put twice in jeopardy. US Const, Am V; Const 1963, art 1, § 15. But a defendant is not placed in jeopardy until he is put to trial before the trier of facts; jeopardy does not attach until the jury is impaneled and sworn or, in a bench trial, until the court begins to hear evidence. United States v Jorn, 400 US 470, 479; 91 S Ct 547; 27 L Ed 2d 543 (1971), Serfass v United States, 420 US 377, 388; 95 S Ct 1055; 43 L Ed 2d 265 (1975), People v Alvin Johnson, 396 Mich 424, 431, n 3; 240 NW2d 729 (1976), People v Gardner, 37 Mich App 520, 525-526; 195 NW2d 62 (1972), People v Pribble, 72 Mich App 219, 223; 249 NW2d 363 (1976). Even if it is true that conviction on both counts would constitute double punishment, the mere fact that the defendant is charged with both does not put him twice in jeopardy. See People v Goodchild, 68 Mich App 226, 236-237; 242 NW2d 465 (1976), lv den, 397 Mich 830 (1976), McDaniel v Jackson, 78 Mich App 218; 259 NW2d 563 (1977). At this point, prior to trial, defendant has yet to be placed in jeopardy once, let alone twice. For this reason I would affirm the trial court.

However, I disagree with the majority’s conclusion that there would be no double jeopardy violation if defendant is ultimately convicted of both crimes with which he is charged. Because assault with intent to commit murder is a lesser included offense of "felony-firearm”, at least in this case, defendant may not be convicted of both the lesser and the greater offense.

Among the guarantees encompassed by the double jeopardy clause is protection against multiple punishment for the same offense. North Carolina v Pearce, 395 US 711, 717; 89 S Ct 2072; 23 L Ed 2d 656 (1969). It is beyond dispute that a single act may violate more than one criminal statute where this is the clear legislative intent. Blockburger v United States, 284 US 299, 304; 52 S Ct 180; 76 L Ed 306 (1932), Gore v United States, 357 US 386; 78 S Ct 1280; 2 L Ed 2d 1405 (1958), People v Bennett, 71 Mich App 246, 248; 247 NW2d 368 (1976). But where one of two offenses charged is necessarily a lesser included offense of the other, convictions for both based on the same act amount to unconstitutional double punishment. People v Martin, 398 Mich 303; 247 NW2d 303 (1976), People v Stewart (On Rehearing), 400 Mich 540; 256 NW2d 31 (1977).

Based on the facts developed at the preliminary examination, it appears that defendant’s alleged act of assault with intent to murder was necessarily a lesser included offense of felony-firearm. A necessarily lesser included offense is an offense such that it is impossible to commit the greater without first having committed the lesser. People v Patskan, 387 Mich 701, 713; 199 NW2d 458 (1972), People v Ora Jones, 395 Mich 379, 387; 236 NW2d 461 (1975). Some offenses are never necessarily included in others on any set of facts because they share no elements. E.g., People v Jones, 75 Mich App 261, 272; 254 NW2d 863 (1977) (gross indecency and assault with intent to commit gross indecency). Other offenses are always necessarily included in others because the latter consist of all the elements of the former plus more. E.g., People v Hoffmeister, 394 Mich 155, 157, n 1; 229 NW2d 305 (1975), People v Carter, 395 Mich 434, 437-438; 236 NW2d 500 (1975) (second-degree murder always included in first-degree murder). In these polar cases of mutual exclusivity, the question of lesser included offenses is answerable by reference to the elements of the offense without an analysis of the facts of the particular case. But this is not always true. There are offenses which are necessarily lesser included offenses of others as a matter of fact but not as a matter of legal or logical necessity. In such situations, it becomes necessary to elect between a purely legal and factual analysis of necessarily lesser included offenses:

"A necessarily included offense can reasonably mean a lesser offense which would always be committed when the main offense was committed. It can be decided in the abstract without any reference to an individual case; for example, assault is always found in assault with intent to kill. Conversely, it could also be one which, as a factual matter, was shown at trial to have been a method not identical to, but included within, the major crime. Thus felonious assault would be a lesser included offense of assault with intent to kill if the method of assault was use of a gun.” Koenig, The Many-Headed Hydra of Lesser Included Offenses: A Herculean Task for the Michigan Courts, 1 DCL Rev 41, 44 (1975).

In the Martin and Stewart cases, supra, the Michigan Supreme Court adopted the factual analysis of lesser included offenses. In both cases the Court held that convictions for possession and delivery of heroin could not both be sustained where there was no evidence of possession apart from the sale. On the facts of those cases, though not in all cases, possession was incident to sale:

"Testimony at trial indicated that a police informant brought [sic] 1/2 ounce of heroin directly from defendant. The defendant personally cut the heroin and delivered it to the informant. Defendant was charged in a two-count information with (1) delivery and (2) possession of a certain 15.62 grams of heroin. There is no dispute over the fact that it was the same 15.62 grams of heroin in each count.
"Possession of the heroin present in this case was that necessary to its delivery.
"On the evidence adduced at this trial, there is no doubt that unlawful possession was a lesser included offense of delivery.
"When the jury found defendant guilty of unlawful delivery of this heroin on the evidence in this record they necessarily found him in possession of it.
" 'It is elementary that the State cannot divide a single offense into several parts according to time and conduct and base separate prosecutions upon and impose separate punishments for the various necessary divisions of that single crime. * * *
" 'The possession of narcotic drugs is an offense distinct from the sale thereof. But in the instant case the possession and sale clearly constituted one single and same act. The possession, as legally defined, is necessarily a constituent part of the sale, as legally defined. Where the only possession of the narcotic drug is that incident to and necessary for the sale thereof, and it does not appear that there was possession before or after and apart from such sale, the State cannot fragment the accused’s involvement into separate and distinct actions or transactions to obtain multiple convictions and separate convictions under such circumstances will not stand. * * * The error is not cured by the fact that the trial Court permitted the two sentences to run concurrently. * * * The conviction and sentence upon the charge of possession must be set aside.’ State v Allen, 292 A2d 167, 172 (Me, 1972).
"A defendant may be charged and tried for each act that constitutes a separate crime. However, when tried for an act which includes lesser offenses, if the jury finds guilt of the greater, the defendant may not also be convicted separately of the lesser included offense.-The prohibition against multiple punishment for the same crime cannot be avoided by the form of the charge. 'The form of pleading cannot assume such importance that it will permit defendant to be convicted of both the included and greater offense.’ People v Greer, 30 Cal 2d 589, 599; 184 P2d 512, 518 (1947). Accord, United States v Belt, 516 F2d 873 (CA 8, 1975), cert den 423 US 1056; 96 S Ct 790; 46 L Ed 2d 646 (1976).” People v Martin, supra, at 307-309. (Emphasis supplied.)

In Stewart the Court stated:

”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.
"Therefore, from the evidence adduced at this trial, the illegal possession of heroin was obviously a lesser included offense of the illegal sale of heroin. When the jury in the case at bar found the defendant guilty of the illegal sale of this heroin, they necessarily found him guilty of possession of the same heroin.” Stewart at 548. (Emphasis supplied.)

In the case at hand, the people concede that as a matter of fact, assault with intent to commit murder was a lesser necessarily included offense of felony-firearm. The felony of "felony-firearm” consists of two elements: a) carrying or possession of a firearm, b) while committing or attempting to commit a felony (other than carrying a concealed weapon). Where the carrying of a firearm is unrelated to the underlying felony, punishment for committing the underlying felony and also for carrying a firearm while doing so is not double punishment. But where a firearm is used to commit the underlying felony, the underlying felony is necessarily included in felony-firearm because it is impossible to commit a felony by using a firearm without at the same time possessing or carrying the firearm during the felony. Possession or carrying is necessary and incidental to use, just as possession of heroin was necessary and incidental to its delivery in Martin and Stewart. In such circumstances, only one conviction can be sustained.

I do not disagree with the goal of the Legislature. Discouraging the use of firearms in the commission of crimes is clearly a proper matter for legislative concern. However, the Legislature has attacked the problem in a constitutionally impermissible manner. By making felony-firearm an independent felony, the Legislature has undermined its own legislative intent. Most states which have enacted similar statutes have merely augmented the punishment for crimes in which a firearm is used, whereas in Michigan the Legislature has created a separate felony. Where, as here, a firearm is used in the commission of a felony, only one conviction can be sustained. Therefore if a defendant is convicted of the "lesser” underlying felony, he or she cannot be convicted of felony-firearm and the legislative intent, additional punishment for use of a firearm during the commission of a felony, is defeated. On the other hand, if a defendant is convicted of the greater offense, felony-firearm, he or she may only be imprisoned for two years for a first offense, five years for a second offense and ten years for a third offense— all of which are shorter sentences than could be imposed for conviction of many of the "lesser” felonies. Again the intent of the Legislature is defeated by the adoption of a statutory scheme which creates a separate felony rather than merely enhancing the punishment for crimes involving the use of a firearm.

In closing, I feel compelled to comment on what I believe to be a dangerous precedent set by the majority. By holding that double jeopardy questions are to be resolved through an examination of "legislative intent”, the majority essentially holds that the Legislature is free to determine whether its own acts are or are not violative of the protections afforded citizens by the state and Federal constitutions. Historically it has been the duty of the courts to interpret constitutional provisions and to determine whether a legislative act runs afoul of some constitutional guarantee. No matter how clear the legislative intent, a statute cannot deprive a citizen of fundamental constitutional rights. I readily concede that the intent of the Legislature is clear in the felony-firearm statute. However, even the clearest and best of intentions cannot save the statute from its constitutional infirmity. A legislative scheme which allows conviction of both the greater and the lesser included offenses deprives a defendant of the protections afforded by the double jeopardy clauses of the state and Federal constitutions.

       MCL 750.227b; MSA 28.424(2), added by 1976 PA 6, § 1, Eff Jan. 1, 1977.
      "(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 [1931 PA 328], or 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.
      (3) The term of imprisonment imposed under this section shall not be suspended. The person subject to the sentence mandated by this section shall not be eligible for parole or probation during the mandatory term imposed pursuant to subsection (1).”

       The pertinent Federal and Michigan constitutional provisions are, respectively, US Const, Am V, and Const 1963, art 1, § 15.

       The intention of the Legislature is typified by a statement made in the 1976 Journal of the Senate, No 5, p 65, by Senator Kammer:
      "Mr. Chairman and colleagues, you know we have heard for 3 days arguments introduced of a great many varieties but it occurs to me that there is just one central question here. There seems to be some concurrence in the feeling that the individual who commits the crime ought to be punished. * * * We ought to be seeking some kind of criminal justice system that provides the measure of the punishment, matches the severity of the crime. And that is what we are discussing here today. It seems to me that we are attempting to determine what kind of punishment will be offered the person who is convicted of

        committing a felony while in possession of a handgun.” (Emphasis supplied.)

       Const 1963, art 4, § 25. See also, Advisory Opinion re Constitutionality of 1972 PA 294, 389 Mich 441, 472-473; 208 NW2d 469 (1973), and People v Mahaney, 13 Mich 481, 497 (1865).

       MCL 769.10 et seq.; MSA 28.1082 et seq.

        See generally, Woofter v O’Donnell, 91 Nev 756; 542 P2d 1396 (1975).


author: D. E. Holbrook, Jr., P. J.

text:
    PEOPLE v BRINTLEY PEOPLE v ROBINSON
    Docket Nos. 77-2756, 77-3404.
    Submitted June 14, 1978, at Grand Rapids.
    Decided September 20, 1978.
    Defendants Curtis Brintley and Carlos Robinson were convicted of armed robbery and defendant Brintley was also convicted of possession of a firearm during the commission of a felony in Recorder’s Court of Detroit, Robert L. Evans, J. Both defendants appeal. Held:

    1. A single act may violate more than one criminal statute where this is the clear legislative intent; however, where one of two offenses charged is necessarily a lesser included offense of the other, convictions for both based on the same act amount to unconstitutional double punishment.
    2. A necessarily lesser included offense is an offense such that it is impossible to commit the greater without first having committed the lesser; some offenses are never necessarily included in others on any set of facts because they share no elements, other offenses are always necessarily included in others because the latter consists of all of the elements of the former plus more.
    3. The felony of "felony-firearm” consists of two elements: (1) carrying or possession of a firearm, (2) while committing or attempting to commit a felony other than carry a concealed weapon; where the carrying of a firearm is unrelated to the underlying felony, punishment for committing the underlying felony and also carrying a firearm while doing so is not double punishment but where a firearm is used to commit the underlying felony, the underlying felony is necessarily included in felony-firearm because it is impossible to commit a felony by using a firearm without at the same time possessing or carrying the firearm during the felony.
    4. Double jeopardy questions may not be resolved through an examination of legislative intent; a statute cannot deprive a citizen of fundamental constitutional rights.

      References for Points in Headnotes
    [1-3] 21 Am Jur 2d, Criminal Law §§ 185-189.
    [3] 79 Am Jur 2d, Weapons and Firearms §§ 4-7.
    [4] 21 Am Jur 2d, Criminal Law §§ 166, 185.

      Affirmed in part, reversed in part.
    1. Criminal Law — Single Transaction — Legislative Intent — Necessarily Lesser Included Offenses — Double Punishment.
    A single act may violate more than one criminal statute where this is the clear legislative intent; however, where one of the two offenses charged is necessarily a lesser included offense of the other, convictions for both based on the same act amount to unconstitutional double punishment.
    2. Criminal Law — Necessarily Lesser Included Offenses.
    A necessarily lesser included offense is an offense such that it is impossible to commit the greater without first having committed the lesser; some offenses are never necessarily included in others on any set of facts because they share no elements, other offenses are always necessarily included in others because the latter consists of all of the elements of the former plus more.
    3. Criminal Law — Felony-Firearm—Lesser Included Offenses.
    The felony of "felony-firearm” consists of two elements: (1) carrying or possession of a firearm, (2) while committing or attempting to commit a felony other than carry a concealed weapon; where the carrying of a firearm is unrelated to the underlying felony, punishment for committing the underlying felony and also carrying a firearm while doing so is not double punishment but where a firearm is used to commit the underlying felony, the underlying felony is necessarily included in felony-firearm because it is impossible to commit a felony by using a firearm without at the same time possessing or carrying the firearm during the felony.
    4. Constitutional Law — Double Jeopardy — Legislative Intent— Fundamental Constitutional Rights.
    Double jeopardy questions may not be resolved through an examination of legislative intent; a statute cannot deprive a citizen of fundamental constitutional rights.

      Frank J. Kelley, Attorney General, Robert A. Derengoski Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, and Robert A. Reuther and Paul C. Louisell, Assistant Prosecuting Attorneys, for the people.

      Arthur H. Landau, for defendant Brintley.

      Seymour Weberman, for defendant Robinson.
    Before: D. E. Holbrook, Jr., P. J., and T. M. Burns and W. Van Valkenburg, JJ.

       Former circuit judge, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.

   D. E. Holbrook, Jr., P. J.

Defendants were charged in a complaint and warrant with two counts: armed robbery contrary to MCL 750.529; MSA 28.797, and possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). Following a trial by the court, without a jury, the trial judge made findings of fact and conclusions of law among which are the following:

"I find, as a fact, beyond a reasonable doubt, that both defendants are guilty of Count I, robbery armed. I find, as a fact, that the instrumentality used in the robbery armed was a gun and that the defendant, Curtis Brintley, possessed the gun during the commission of a felony which is in violation of Statute 750.227b.
"I’m of the opinion that that felony cannot be committed vicariously. Therefore I find the defendant, Carlos Robinson, not guilty of that. That is to say, it can’t be committed constructively. I therefore find the defendant, Curtis Brintley, guilty of Counts I and II. I find the defendant, Carlos Robinson, guilty of Count I, only.”

Thereafter the trial court sentenced defendant Brintley to a prison term of 5 to 10 years on the armed robbery charge and to a prison term of 2 to 10 years on the felony-firearm charge. Defendant Robinson was sentenced to a prison term of from 1-1/2 to 5 years on the armed robbery charge. Both defendants appeal as of right.

While numerous issues are raised on appeal all but one are lacking in merit. Since the single meritorious issue applies only to defendant Brintley we affirm defendant Robinson’s conviction without further discussion.

With respect to defendant Brintley he claims on appeal that the trial court reversibly erred in finding him guilty of both armed robbery and felony-firearm in that such a finding represents an unconstitutional duplication of punishment. We agree.

Among the guarantees encompassed by the double jeopardy clause is protection against multiple punishment for the same offense. North Carolina v Pearce, 395 US 711, 717; 89 S Ct 2072; 23 L Ed 2d 656 (1969). It is beyond dispute that a single act may violate more than one criminal statute where this is the clear legislative intent. Blockburger v United States, 284 US 299, 304; 52 S Ct 180; 76 L Ed 306 (1932), Gore v United States, 357 US 386; 78 S Ct 1280; 2 L Ed 2d 1405 (1958), People v Bennett, 71 Mich App 246, 248; 247 NW2d 368 (1976). But where one of two offenses charged is necessarily a lesser included offense of the other, convictions for both based on the same act amount to unconstitutional double punishment. People v Martin, 398 Mich 303; 247 NW2d 303 (1976), People v Stewart (On Rehearing), 400 Mich 540; 256 NW2d 31 (1977).

Based on the trial court’s findings it is apparent that defendant Brintley’s act of armed robbery was necessarily a lesser included offense of felony-firearm. A necessarily lesser included offense is an offense such that it is impossible to commit the greater without first having committed the lesser. People v Patskan, 387 Mich 701, 713; 199 NW2d 458 (1972), People v Ora Jones, 395 Mich 379, 387; 236 NW2d 461 (1975). Some offenses are never necessarily included in others on any set of facts because they share no elements. E.g., People v Jones, 75 Mich App 261, 272; 254 NW2d 863 (1977) (gross indecency and assault with intent to commit gross indecency). Other offenses are always necessarily included in others because the latter consist of all the elements of the former plus more. E.g., People v Hoffmeister, 394 Mich 155, 157, n 1; 229 NW2d 305 (1975), People v Carter, 395 Mich 434, 437-438; 236 NW2d 500 (1975) (second-degree murder always included in first-degree murder). In these polar cases of mutual exclusivity, the question of lesser included offenses is answerable by reference to the elements of the offense without an analysis of the facts of the particular case. But this is not always true. There are offenses which are necessarily lesser included offenses of others as a matter of fact but not as a matter of legal or logical necessity. In such situations, it becomes necessary to elect between a purely legal and factual analysis of necessarily lesser included offenses:

"A necessarily included offense can reasonably mean a lesser offense which would always be committed when the main offense was committed. It can be decided in the abstract without any reference to an individual case; for example, assault is always found in assault with intent to kill. Conversely, it could also be one which, as a factual matter, was shown at trial to have been a method not identical to, but included within, the major crime. Thus felonious assault would be a lesser included offense of assault with intent to kill if the method of assault was use of a gun.” Koenig, The Many-Headed Hydra of Lesser Included Offenses: A Herculean Task for the Michigan Courts, 1 DCL Rev 41, 44 (1975).

In the Martin and Stewart cases, supra, the Michigan Supreme Court adopted the factual analysis of lesser included offenses. In both cases the Court held that convictions for possession and delivery of heroin could not both be sustained where there was no evidence of possession apart from the sale. On the facts of those cases, though not in all cases, possession was incident to sale.

The felony of "felony-firearm” consists of two elements: a) carrying or possession of a firearm, b) while committing or. attempting to commit a felony (other than carrying a concealed weapon). Where the carrying of a firearm is unrelated to the underlying felony, punishment for committing the underlying felony and also for carrying a firearm while doing so is not double punishment. But where a firearm is used to commit the underlying felony, the underlying felony is necessarily included in felony-firearm since it is impossible to commit a felony by using a firearm without at the same time possessing or carrying the firearm during the felony. Possession or carrying is necessary and incidental to use, just as possession of heroin was necessary and incidental to its delivery in Martin and Stewart. In such circumstances, only one conviction can be sustained.

I do not disagree with the goal of the Legislature. Discouraging the use of firearms in the commission of crimes is clearly a proper matter for legislative concern. However, the Legislature has attacked the problem in a constitutionally impermissible manner. By making felony-firearm an independent felony, the Legislature has undermined its own legislative intent. Most states which have enacted similar statutes have merely augmented the punishment for crimes in which a firearm is used, whereas in Michigan the Legislature has created a separate felony. Where, as here, a firearm is used in the commission of a felony, only one conviction can be sustained. Therefore if a defendant is convicted of the "lesser” underlying felony, he or she cannot be convicted of felony-firearm and the legislative intent, additional punishment for use of a firearm during the commission of a felony, is defeated. On the other hand, if a defendant is convicted of the greater offense, felony-firearm, he or she may only be imprisoned for two years for a first offense, five years for a second offense and ten years for a third offense— all of which are shorter sentences than could be imposed for conviction of many of the "lesser” felonies. Again the intent of the Legislature is defeated by the adoption of a statutory scheme which creates a separate felony rather than merely enhancing the punishment for crimes involving the use of a firearm.

To hold otherwise would be to establish a dangerous precedent and would be to say that double jeopardy questions are to be resolved through an examination of "legislative intent” and that the Legislature is free to determine whether its own acts are or are not violative of the protections afforded citizens by the state and Federal constitutions. Historically it has been the duty of the courts to interpret constitutional provisions and to determine whether a legislative act runs afoul of some constitutional guarantee. No matter how clear the legislative intent, a statute cannot deprive a citizen of fundamental constitutional rights. I readily concede that the intent of the Legislature is clear in the felony-firearm statute. However, even the clearest and best of intentions cannot save the statute from its constitutional infirmity. A legislative scheme which allows conviction of both the greater and the lesser included offenses deprives a defendant of the protections afforded by the double jeopardy clauses of the state and Federal constitutions.

Defendant Brintley’s conviction and sentence for "felony-firearm” is therefore set aside. His conviction and sentence for armed robbery shall stand.

Affirmed in part; reversed in part.

        See generally, Woofter v O’Donnell, 91 Nev 756; 542 P2d 1396 (1975).


author: J. H. Gillis, J. R. M. Maher, P. J.

text:
    PEOPLE v LUMPKIN
    Docket No. 77-3100.
    Submitted June 19, 1978, at Detroit.
    Decided September 20, 1978.
    James C. Lumpkin, on his plea of guilty, was convicted of possession of heroin and possession of a firearm during the commission of or attempt to commit a felony, Recorder’s Court for the City of Detroit, Dalton A. Roberson, J. Pursuant to a sentence bargain entered on the record by the Court, the sentence for possession of heroin was to be suspended and the defendant was to serve the mandatory two-year minimum on the felony-firearm charge. Defendant appeals challenging the validity of the plea proceedings. Held:

    So long as no attempt is made to charge a defendant as a habitual offender, failure to inform a defendant that he could be so charged is harmless. Therefore, the trial court did not err in failing to inform the defendant that he could be charged under the habitual offender act since the defendant was not charged as a habitual offender and his sentence was not enhanced due to his habitual offender status. The facts elicited by the trial court clearly established that the defendant was in possession of a firearm when he committed the felony of possessing heroin. A factual basis for acceptance of a plea exists if an inculpatory inference can reasonably be drawn by a jury from the facts admitted by the defendant even if an exclupatory inference could also be drawn and the defendant asserts the latter is the correct inference.
    Affirmed.
    R. M. Maher, P. J., concurred in part and dissented in part and would hold that the application of the felony-firearm statute to this case violated the double jeopardy clauses of the United States and Michigan Constitutions and that, therefore, the conviction for possession of a firearm during the commission of a felony should be vacated.

      References for Points in Headnotes
    [1, 2] 21 Am Jur 2d, Criminal Law §§ 486-491.
    Court’s duty to advise or admonish accused as to consequence of plea of guilty, or to determine that he is advised thereof. 97 ALR2d 549.
    [3] 21 Am Jur 2d, Criminal Law §§ 165, 166, 188, 189.

      Opinion op the Court
    1. Criminal Law — Plea op Guilty — Informing Defendant — Habitual Offenders — Harmless Error.
    Failure of a court when accepting a guilty plea to inform the defendant that he subsequently might be charged as a habitual offender is harmless error where the defendant was not thereafter charged as a habitual offender and his sentence was not enhanced due to his habitual offender status.
    2. Criminal Law — Plea of Guilty — Inferences.
    A factual basis for acceptance of a plea exists if an inculpatory inference can reasonably be drawn by a jury from the facts admitted by the defendant even if an exculpatory inference could also be drawn and the defendant asserts the latter is the correct inference.
    Concurrence in Part, Dissent in Part by R. M. Maher, P. J.
    3. Constitutional Law — Criminal Law — Double Jeopardy — Felony Firearm.

      The conviction of a criminal defendant for both possession of heroin and possession of a ñrearm during the commission of or attempt to commit the felony of possession of heroin violates the double jeopardy clause of the United States and Michigan Constitutions.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward R. Wilson, Principal Attorney, Appeals, and Robert T. Monk, Assistant Prosecuting Attorney, for the people.

      Elaine W. Milliken, for defendant.
    Before: R. M. Maher, P. J., and J. H. Gillis and McGregor, JJ.

       Former Court of Appeals judge, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.

   J. H. Gillis, J.

On June 7, 1977, defendant pled guilty to two offenses, possession of heroin, contrary to MCL 335.341(4)(a); MSA 18.1070(41)(4)(a), and possession of a‘firearm during the commission of or attempt to commit a felony, contrary to MCL 750.227b; MSA 28.424(2). Pursuant to a sentence bargain entered on the record at that time, the sentence for possession of heroin was to be suspended, and the defendant was to serve the mandatory two-year minimum on the felony-firearm charge. Defendant now appeals as of right challenging the validity of the plea proceedings.

Defendant first contends that the trial court erred in failing to adequately explain the habitual offender act, MCL 769.10 et seq.; MSA 28.1082 et seq., and, therefore, defendant was not advised of the maximum sentence that could be imposed upon him as required by GCR 1963, 785.7(l)(c).

In People v Love, 76 Mich App 379, 382; 256 NW2d 602 (1977), it was held:

"So long as no attempt is made to charge a defendant as a habitual offender, failure to inform a defendant he could be so charged is harmless. People v Michael Jones, 73 Mich App 91; 250 NW2d 554 (1976).”

Defendant was not charged as a habitual offender in the instant case. His sentence was not enhanced due to his habitual offender status.

Accordingly, we find no error in respect to this issue.

Defendant next contends that the facts elicited by the trial court were inadequate to establish that defendant did in fact have possession of a firearm during the commission of a felony.

"The Court: Tell me what you did on or about March the 18, 1977 at 3836 Lillibridge avenue in the City of Detroit:
"Mr. Lumpkin: I was in the house, you know, sitting on the couch and the police came in and I had a small pack of heroin on me and it was a gun in there.
"The Court: The gun was in the house?
"Mr. Lumpkin: Yes.
"The Court: You had it in your side?
"Mr. Lumpkin: Yes.”
"A factual basis for acceptance of a plea exists if an inculpatory inference can reasonably be drawn by a jury from the facts admitted by the defendant even if an exculpatory inference could also be drawn and defendant asserts the latter is the correct inference.” Guilty Plea Cases, 395 Mich 96; 235 NW2d 132 (1975).

The aforementioned exchange between defendant and the court clearly establishes that defendant was in possession of a firearm when he committed the felony of possessing heroin. The exchange satisfies the factual basis requirements set forth in Guilty Plea Cases, supra.

Defendant’s final allegation of error in respect to the constitutionality of MCL 750.227b; MSA 28.424(2) fails in light of the advisory opinion issued by the Supreme Court of this state in Advisory Opinion re Constitutionality of 1972 PA 294, 389 Mich 441; 208 NW2d 469 (1973).

Affirmed.

McGregor, J., concurred.

R. M. Maher, P. J.

(concurring in part; dissenting in part). While I agree with the majority that MCL 750.227b; MSA 28.424(2) does not violate the Michigan constitutional provision against revising, altering or amending other statutes by implication, I find another problem with the law which should not be ignored, which I raise sua sponte. For reasons well stated in opinions by my fellow judges, defendant’s conviction under the felony-firearm statute cannot be constitutionally condoned. See Wayne County Prosecutor v Recorder’s Court Judge, 85 Mich App 727; 272 NW2d 587 (1978), and People v Gerald Hughes, 85 Mich App 8; 270 NW2d 692 (1978) (D. F. Walsh, J., dissenting). I would vacate the conviction for possession of a firearm during the commission of a felony but leave the conviction for possession of heroin undisturbed.