88 Mich. App. 734 | Mich. Ct. App. | 1978
Lead Opinion
On November 8, 1977, defendant pled guilty to the crime of assault with intent to rob being armed, MCL 750.89; MSA 28.284, and possession of a firearm in commission of or attempted commission of a felony, MCL 750.227b; MSA 28.424(2).
Defendant raises two issues for our consideration. We find no error in the first issue.
On the second issue, defendant alleges that to convict defendant of each of these offenses violates
We wish to call to the attention of the litigants, the bench and bar that in this opinion we do not rule on the constitutionality of the felony-firearm act itself, but, rather, hold that the double jeopardy provision of the Michigan Constitution and the Constitution of the United States prevents application of the act under the facts of this case. We leave to a later date the issue of the constitutionality of the felony-firearm act when the underlying felony is not firearm related, such as a violation of the controlled substances act or the criminal sexual conduct act.
The conviction for assault with intent to rob being armed is affirmed. The conviction for possession of a firearm in commission of or attempted commission of a felony is vacated.
Concurrence Opinion
(concurring). I concur in the reversal of the defendant’s conviction, but I would hold that conviction of both felony-firearm and the underlying felony is in all cases a violation of the constitutional provision against double jeopardy, People v Berry, 85 Mich App 764; 272 NW2d 604 (1978), Wayne County Prosecutor v Recorder’s Court Judge, 85 Mich App 727; 272 NW2d 587 (1978).