299 N.W.2d 366 | Mich. Ct. App. | 1980
PEOPLE
v.
FERRELL
Michigan Court of Appeals.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, and Dianne M. Odrobina, Assistant Prosecuting Attorney, for the people.
Elliot D. Margolis, for defendant.
Before: BASHARA, P.J., and D.C. RILEY and E.A. QUINNELL,[*] JJ.
E.A. QUINNELL, J.
Defendant was convicted by a jury of first-degree criminal sexual conduct, MCL 750.520b; MSA 28.788(2), and unarmed robbery, MCL 750.530; MSA 28.798. He was sentenced to concurrent terms of 5 to 15 years imprisonment.
Defendant's double jeopardy claim must be rejected in light of the Michigan Supreme Court holding in Wayne County Prosecutor v Recorder's Court Judge, 406 Mich. 374; 280 NW2d 793 (1979), app dis sub nom Brintley v Michigan, 444 U.S. 948; 100 S. Ct. 418; 62 L. Ed. 2d 317 (1979). In Wayne County Prosecutor, supra, 397-398, the Court held that the double jeopardy test of Blockburger v United States, 284 U.S. 299; 52 S. Ct. 180; 76 L Ed *611 306 (1932), turned on an analysis of what the prosecution was legally required to prove to obtain a conviction, and not what the prosecution established in a particular case. Here, the prosecution was legally required to prove that a sexual penetration occurred under circumstances involving the commission of some other felony. The prosecution was not legally required to prove unarmed robbery. Thus, under the Michigan Supreme Court's interpretation of Blockburger, no double jeopardy violation exists.
Furthermore, there is no constitutional infirmity with the convictions for unarmed robbery and first-degree criminal sexual conduct under the standard set out in People v Martin, 398 Mich. 303; 247 NW2d 303 (1976). In Wayne County Prosecutor, supra, 399-402, the Court held that where there is a clear expression of legislative intent to authorize multiple convictions and punishments arising out of a common act, there is no double jeopardy problem. In the instant case, there is a clear legislative intent to authorize multiple convictions and punishments. See People v Robideau, 94 Mich. App. 663; 289 NW2d 846 (1980). We are thus bound by Wayne County Prosecutor, supra, to uphold both of defendant's convictions.
Defendant's other claims of error lack any merit and do not require discussion.
Affirmed.
BASHARA, P.J., concurred.
D.C. RILEY, J. (concurring).
While I concur in the result reached in this matter based on our Supreme Court's decision in Wayne County Prosecutor v Recorder's Court Judge, 406 Mich. 374, 397-398; 280 NW2d 793 (1979), I write separately to indicate my disagreement with that decision and *612 to reaffirm my position in People v Allen, 94 Mich. App. 539; 288 NW2d 451 (1980) (lest my approval here be interpreted as a repudiation of same), that prosecution for felony murder and armed robbery presents a valid double-jeopardy claim.
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment.