*1 v DRAKE JOHNSON PEOPLE 15, 1978, 77-2754, at Det June 77-2755. Submitted Nos. Docket appeal for. Decided September Leave to 1978. roit pled guilty separate counts of armed Drake L. Johnson firearm in the commission on each conviction consecutive sentences He sentenced to was Maher, question Court, Joseph The E. in Detroit Recorder’s pos- appeal bars conviction whether double is robbery. during of armed the commission session of a firearm Held: excepted by underlying felony not A conviction of a firearm under
felony-firearm and of statute sentence, jeopardy, or double double does not involve statute punishment. that double He would hold dissents. N. J. convicted twice on a defendant is is violated where resulting multi- multiple punishment ple is unconstitutional. conviction Opinion of the Court Statutes—Felony-Fire- Law —Criminal Jeopardy Punishment. arm —Double —Double statute, augmenting a sentence statute is specific require intended which was possessed penalty at is carried or where a firearm additional attempting not to commit a the time of statute; not excepted by the statute does a conviction under sentence, punish- jeopardy, involve double ment.
[1] [2] [3] 21 Am Jur 21 Am Jur Am Jur Am Jur 2d, Weapons 2d, 2d, 2d, Criminal Law 189. References Criminal Law § Criminal Law 189. and Firearms § for Points in § 166. 24. Headnotes People v Drake Johnson Opinion of the Court Jeopardy Separate 2. Criminal Law —Double — Counts —Identical Proofs —Constitutional Law. *2 prohibition against embodied in the United Michigan States and Constitutions is violated where defend- ant is convicted twice on resulting multiple multiple punish- conviction and (US Const, V, ment cannot be condoned Am 15). 1963, 1, Art Legislature’s Jeopardy— Intent —Double Criminal Law. The intent of the cannot override the mandates of the Michigan prohi- United States and Constitutions jeopardy; bition double convictions and double for the same crime by saying "we intend it so”. Kelley, Attorney General, Frank J. A. Robert Derengoski, General, Solicitor Cahalan, William L. Prosecuting Attorney, Mueller, R. Michael Direc- Repeat tor, Bureau, Prosecutor’s Offenders and Larry Prosecuting Attorney, Roberts, L. Assistant people. Seymour
Sallen, Sallen, Sallen, & for defendant appeal. on Beasley
Before: P. Kaufman, and and P. R. JJ. Mahinske,* agree
Per Curiam. We with the dissent that the concerning plea-taking issues raised are with- out merit. People For the reasons delineated in v Walter
Johnson, we decline find that the statute2 is unconstitutional as this case. judge, sitting Appeals assignment. Circuit on the Court of App Walter NW2d 605 28.424(2). 750.227b; MCL MSA J. N. (dissenting). 29, March On J. count of armed to one 1977, pled defendant 28.797, and one MCL robbery, in the commission of firearm of a 28.424(2). 750.227(b); April On MSA MCL felony, to a term of was sentenced on imprisonment years from 12 to 40 two-year term mandatory and to a robbery count count, right. appeals as run Defendant consecutively. issues, two of three raises appeal, On itself. guilty plea procedure pertain to the which no and are of carefully considered been have They troubling issue: a more presents The third merit. bar conviction Does during the commission firearm firearm is armed where *3 fact, was, in used? prudent method the most appears to issue is evaluate
dealing the with perti- the its facts. In this each case own follows: information reads as portion nent of the ’’COUNT ” ** * COMPLAINANT the above-named did assault dangerous weapon an article a while armed with so in manner to lead or fashioned a used dangerous reasonably believe it to be to assaulted and there handgun did then weapon, to-wit: rob, said feloniously and take from steal COMPLAINANT, States presence, United or in his Cadillac, to Contrary Currency and an 1969 automobile 750.529, Sec. M.C.L.A. II ’’COUNT " ** * possession carry or have then and there did firearm, handgun in the commission to-wit: a Armed, Robbery attempt to to-wit: commit added.) (Emphasis Contrary to M.C.L.A. 750.227b.” v Drake Johnson
Thus, to its burden of satisfy proof I, as to Count prosecution prove has all of to the elements that constitute robbery common-law and the added element defendant was armed with a hand- gun he when the complainant, robbed alleged as the information. To satisfy burden proof II, to Count prosecution has to prove that handgun was armed with a at the time he committed a of com- plainant. prosecutor’s Clearly, task Count I is identical to its task regarding Count II.
To convict defendant
on separate
proofs
violates the prohibition
against double
embodied in
the United
the Michigan
Constitution1 and
Constitut
ion.2 Not only would defendant be subject
to the
collateral
consequences
multiple
convictions3
but he would also be
subject
multiple punish
ment for the same offense. Such a result
Simpson
v United
condoned.
States,
6;
909;
435 US
98 S Ct
55 L Ed
2d
States,
v
(1978),
Jeffers United
137;
432 US
97 S Ct
2207;
(1977),
This formulation does potential prob- raise two First, lems which merit discussion. decision my appear ignore the clear intent of the Legislature. However, intent of the " ** any person shall [N]or *4 * * * ”, put jeopardy same offence to be of in life limb US Const, Am V. part, pertinent In "No shall be the same offense put jeopardy”. to be twice in art 15.§ 3Multiple may parole consideration; they in convictions be factor certainly punishment enhance the out meted if is subse quently found to be an habitual offender. by N. J. United the mandates override Michigan Constitution. Constitution convictions and same crime saying for the it "We intend so”. easy it have been noted would should be to make
for the aggravated committing firearm while an of sentencing in circumstance e.g., MCL See fender However, against strongly I caution 28.797.4 because solely law "felony-firearm” upholding manner. in another be achieved the result could This in of disre position would then Court review in constitutional judicial garding duty cases. or not is whether problem potential
The second right his to double waived to both offenses. guilty by pleading protection v Alvin not. that he did conclude 424; 240 pro- guarantees find that defendant’s Since I were violated tection guilty plea of I would vacate defendant’s this and order on the plea and affirm defendant’s charge dismissed on the armed count. injury is aggravated or serious "If an assault any an armed inflicted defined in this while section, years’ less than shall be not the sentence prison.” in the state