272 N.W.2d 604 | Mich. Ct. App. | 1978
PEOPLE
v.
BERRY
Michigan Court of Appeals.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, and Edward Reilly Wilson, Principal Attorney, Appeals, for the people.
William A. House, for defendant.
Before: N.J. KAUFMAN, P.J., and R.M. MAHER and D.C. RILEY, JJ.
PER CURIAM.
Defendant pled guilty to robbery armed, MCL 750.529; MSA 28.797, and possession of a firearm in the commission of a felony, MCL 750.227b; MSA 28.424(2).
Defendant contends that the trial court erred in denying defendant's motion to withdraw his plea because there was an inadequate factual basis. We find that the proper factual basis was established and that the trial court did not err.
However, we do not believe defendant's conviction under the felony-firearm statute is constitutionally valid. See Wayne County Prosecutor v Recorder's Court Judge, 85 Mich App 727; 272 NW2d 587 (1978), People v Mitchell, 85 Mich App 757; 272 NW2d 601 (1978) (N.J. KAUFMAN, J., dissenting), People v Gerald Hughes, 85 Mich App 8; 270 NW2d 692 (1978) (D.F. WALSH, J., dissenting). Though we find the robbery armed charge a necessarily included offense of the felony-firearm charge, we choose to vacate the conviction under the felony-firearm statute and affirm the robbery armed conviction. Wayne County Prosecutor v Recorder's Court Judge, supra.
Affirmed in part; reversed in part.
N.J. KAUFMAN, P.J. (concurring).
I concur separately for the reasons stated in my dissenting *767 opinions in People v Walter Johnson 85 Mich App 654; 272 NW2d 605 (1978), People v Mitchell, 85 Mich App 757; 272 NW2d 601 (1978), and People v Drake Johnson, 85 Mich App 752; 272 NW2d 599 (1978).
