People v. McDowell
272 N.W.2d 576
Mich. Ct. App.
1978
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*1 People v McDowell 1978]

PEOPLE v McDOWELL 20, 1977, Docket No. 77-2742. Submitted December at Detroit . De- 20, September appeal applied cided 1978. Leave to for. William G. McDowell was arrested and with assault with intent to commit murder and with of a firearm during felony. charges the commission of a Both are based on alleged gun through the same facts—that the defendant fired a occupied eight officers, by off-duty police the door of a van of whom was wounded the foot. The defendant’s motion to quash or, alternatively, compel one or both counts prosecutor denied, to elect between them was Recorder’s Court Detroit, Horrigan, appeals by Albert P. J. The defendant granted, claiming placed leave that he would be twice in jeopardy by having against for the same offense to defend prosecution on both counts. Held: felony-firearm unequivocally An examination of statute Legislature pre- demonstrates the intent of the to define and separate scribe offense and distinct from the applies. substantive felonies to which it inoperable only separate statute is if viewed as a distinct [1] 21 Am Jur Limitations under double 16 Am Jur state criminal 968. 2d, 2d, References Criminal Law 166. Constitutional Law 332. prosecutions Supreme for Points in Headnotes § — clause of Fifth Amendment § Court cases. 25 L Ed 2d upon [4, [10] [11, [7] [5] [8] [13, [15] [2, Due 73 Am Jur 5] 3, 5, 6, 73 Am Jur 73 Am Jur 16 Am Jur or for neously Supreme Court cases. 2 L Ed 2d 2020. 21 Am Jur 21 Am Jur 12] 73 Am Jur process 21 Am Jur 21 Am Jur 9] multiple — 21 Am Jur 2d, 2d, 2d, 2d, as violated 2d, 2d, 2d, § Statutes 37. Statutes Constitutional Statutes 200. 2d, 2d, Criminal Law Criminal offenses of the same Statutes Criminal Law Criminal 2d, § §§ Criminal Law § 294, successive state trials for 145. Law Law 137 et §§ §§ 295. Law §§ §§ § 185-187, 189, character, 176. §§ 189. 182, 185, seq. committed simulta- 212. 187-189. single offense as a sentence

statute. The statute should be viewed enhance- augmenting statute. The trial court’s ment or sentence denial quash proper. of the defendant’s motion to was result.) (Beasley, J., Affirmed. concurred *2 J., concurred in the result but he D. E. would jeopardy prematurely hold that the double issue is raised once, placed jeopardy has not been in because the defendant let twice, point. at The mere fact that the defendant alone is charged put jeopardy. with both offenses does not him twice in ultimately He believes that if the defendant were convicted jeopardy of both offenses-there would be a double violation because assault with intent to commit murder is a lesser the crime under the circum- included offense of may stances this case and the defendant not be convicted of of greater both the lesser and the offense. He would hold that a may deprive not a of fundamental statute citizen constitutional rights, legislative clear the no matter how intent. Bashara, P. J. of Jeopardy. 1. Constitutional Law —Double Michigan’s jeopardy provision opera- double is coterminous in scope counterpart. Federal tional with that its Jeopardy 2. Constitutional Law —Double —Due Process —Lesser Fairness. Included Offenses —Fundamental Standards for a determination of the "same offense’’for double require jeopardy purposes statutory an examination of each requires proof offense to determine whether one of an addi- not; theory, merger tional fact which the other does under this place necessarily takes where one of two offenses is a both, lesser included offense of the other and convictions for act, arising impermissible. constitutionally out of the same are Jeopardy Felony-Firearm— 3. Constitutional Law —Double — Necessarily Included Lesser Offenses. felony-ñrearm underlying felony Convictions of both and the guarantees against violate constitutional double underlying felony always that the included will be however, felony-ñrearm; not mean lesser offense of this does statute, Appeals felony-ñrearm when that the Court of ñnds the entirety, considered in its unconstitutional. Statutory Legislative 4. Statutes — Construction — Intent —Let- Spirit ter of Law — of Law. primary governing statutory The is ñrst and rule construction People v McDowell give foremost to ascertain and effect to manifest intent of Legislature; design Legislature the real where statute, ordaining although precisely expressed, yet not plainly perceivable or be ascertained with reasonable language certainty, given the statute must be such carry effect, design though, construction as will into even doing, sacriñced, in so letter of will the exact the law be, though indeed, contrary the construction to the letter. Legislative Felony-Fire- 5. Statutes —Criminal Law — Intent — Statutory arm Statute — Construction. felony-fírearm clearly The behind the intent statute so mandatory penalty indicates a additional when a firearm is possessed during used or commission that it upon Appeals uphold, the Court incumbent if at all mandate, possible, statutory such within a clear limits proscription. constitutional Felony-Firearm Law — Statutes —Criminal Statute —Sentence Separate Felony. Enhancement Statute — Distinct felony-fírearm statute is a sentence enhancement or sentence augmenting inoperable statute should be construed to be *3 only separate felony. as a distinct Statutes—Presumption 7. Constitutional Law — of Constitution- ality. Every legislative presumed constitutional; is act to be the courts required, possible, validity. are whenever to construe in favor of Felony-Firearm 8. Criminal Law —Constitutional Law — Statute Complete Language —Removal of Offensive —Act Within Itself. felony-fírearm language The statute with its is offensive removed itself; complete require still an act within it does not references meaning, to other statutes for its it nor does alter or amend title; scope application another statute references to in analogized it can be to the habitual offender statute which has such, constitutional; been found to be it is not as constitution- ally offensive.

Opinion Beasley, of J. Statutes—Felony-Fire- 9. Constitutional Law —Criminal Law — arm Statute. The statute is constitutional. D. E. of Jeopardy—Trier of Fact —Attachment Law —

10. Constitutional Jeopardy. put placed he until is to is not in A defendant criminal facts; jeopardy does not attach until the trial before trier trial, or, until impaneled a bench the court jury sworn is begins hear to evidence. Jeopardy Single Transaction— Law —Double — 11. Constitutional to Quash. Punishment —Motion Double charged two is with crimes a defendant The mere fact put arising single does him twice in transaction not out of a would jeopardy, true that conviction on both counts even if it is therefore, appeal, punishment; a defendant’s double constitute jeopardy, raising from a trial court’s denial double the issue of arising quash one or both counts motion of the defendant’s premature single is because defendant transaction out of placed jeopardy. has not been Legislative Single Transaction — Intent —Nec- 12. Criminal Law — essarily Lesser Offenses —Double Punishment. Included single more than one criminal statute where A act violate however, intent; where one of two the clear this is necessarily a lesser included offense of is offenses other, on the act amount to for both based same convictions punishment. double unconstitutional Necessarily Included Law — Lesser Offenses. 13. Criminal necessarily it A included offense an offense where lesser having greater impossible to without ñrst commit- commit lesser; offenses never included in ted the some are elements; any they other on set of facts because share no others always necessarily are included in others because offenses other, plus more. of all the elements of the consists Felony-Firearm—Lesser Offenses. Criminal Law — Included felony "felony-ñrearm” of two crime consists elements: (1) (2) ñrearm, committing carrying or while attempting carry to commit a other than concealed *4 carrying weapon; the is unrelated to where the of a ñrearm committing underlying underlying felony, the for doing felony carrying is and also a while so not double ñrearm punishment; but used the under- where ñrearm is to commit underlying lying felony, felony is included the felony-ñrearm impossible to commit a crime because it is v McDowell Bashara, P. felony using by possessing a ñrearm without at the time same carrying during felony. or the ñrearm Jeopardy Legislative 15. Constitutional Law —Double — Intent— Rights. Fundamental Constitutional questions through Double should not be resolved legislative intent; deprive examination of a statute cannot rights. citizen of fundamental constitutional Kelley, Attorney General, Frank J. Robert A. Derengoski, General, Solicitor L. Cahalan, William Prosecuting Attorney, Principal Wilson, Edward R. Appeals, Attorney, Louisell, and Paul C. Assistant Prosecuting Attorney, people. for the Rundell, II,

Curtis G. P. C. for defendant on appeal. J., Before: P. and D. E. Beasley Bashara, Jr., JJ. opinion P. J. Our brother’s delineates Bashara, upon

the salient facts his constitutional which the defendant bases challenge to the However, statute.1 we neither conclude that the the question presented prematurely nor that 750.227b; 6, 1, 28.424(2), by MCL MSA added 1976 PA Eff Jan. § "(1) person A who carries or in his a firearm has at the attempts except felony, time he commits or of section 227 to commit the violation 227a, 328], felony, guilty PA or shall [1931 imprisoned years. Upon for a second conviction under this section, person imprisoned years. Upon shall be for 5 a third or be section, subsequent person impris- conviction under shall this years. oned for 10 (2) imprisonment prescribed by The term of this section shall be imposed felony addition to the sentence for the or conviction attempt felony, consecutively to commit the and shall be served preceding any imprisonment imposed with and term of for the convic- attempt felony. tion of the or to commit the (3) imprisonment imposed The term under section shall not this suspended. person subject be section shall not be to the sentence mandated eligible parole probation during (1).” imposed pursuant mandatory term to subsection *5 85 Mich 697 702 Bashara, Opinion P. J. of construed, statute, violative completely when from double immunity constitutional defendant’s jeopardy.2 quash

The motion denial of defendant’s in a posture case placed the felony-firearm charge The imminent. charges on both was where trial here, was certified question constitutional involved is of question That appeal. and we leave to granted ulti- defendant and the moment to the sufficient him that against of this action mate termination merits, have been determination on the which argued, and is warranted. fully briefed jeop- that our state double we observe Initially, operational scope provision is coterminous in ardy v People counterpart. its with that of Federal Johnson, 2; 430, n 240 NW2d Alvin 396 Mich Ascher, 130 540, 545; (1976), In re 90 Mich 729 (1902). from protection 418 Both clauses afford NW and for multiple multiple punishment prosecutions Pearce, v North Carolina 395 "same offense”. (1969). 711; L Ed 656 2072; 89 Ct 23 2d US S of- for "same Standards determination were enumer- jeopardy purposes fense” for double States, 284 299; Blockburger United v in US ated (1932). developed L test 180; 52 S Ct 76 Ed 306 The Blockburger of the required examination each offense to determine provisions statutory fact required proof whether one of an additional which the other did not.

Michigan has held that under this where theory, lesser two offenses is a necessarily other, merger place included offense of the takes arising and out of the same convictions both People impermissible. act are constitutionally Martin, (1976), Peo- 247 303 303; NW2d are, pertinent provisions Michigan Federal constitutional Const, V, respectively, US Am Const art § v McDowell Bashara, P. J. (On ple Rehearing), v Stewart NW2d light foregoing prece- concede, We must analysis dent and the therefrom, that conviction of underlying felony both and the vio- underlying lates double in that the always will be a lesser included offense *6 felony-firearm. of

However, this does not mean that we find the entirety, statute, when considered in its unconsti- important tutional. An element that cannot be statutory overlooked in construction is the essen- ingredient legislative tial primary intent. The governing statutory interpretation rule is first and give foremost to ascertain and fest intent of the effect to the mani- Legislature. Simpson v United States, 435 6;US 909; S Ct 55 L Ed 2d 70 (1978), Gore v States, United 357 US 78 S Ct 1280; 2 L Ed 2d 1405 clearly The intent of the statute so indicates a mandatory penalty additional when a firearm is possessed during used or the commission of a felony upon that it is incumbent this Court to uphold, possible, if at statutory all such a clear mandate, pro within the limits constitutional scription. legislative history empha Purview of certainty punishment prevailing sizes as the enacting consideration in the statute under rev iew.3 Legislature typified by intention of the a statement made in Senate, 5, 65, the 1976 p Journal of the No Senator Kammer: colleagues, you "Mr. Chairman and days know we have heard for 3 arguments great many introduced of a varieties it but occurs to me just that question there is one central here. There seems to be some feeling concurrence in the that the individual who commits the crime * * * ought punished. ought to be seeking We to be some kind of justice system provides criminal matches the here punishment, that the measure of the severity discussing of the crime. And that is what we are today. attempting It seems to me that we are to determine what person

kind of will be offered the who is convicted of Bashara, P. en- its the statute strike down

Rather than only inoperable tirety, as a it to be we construe separate it rather view statute. We distinct augment- or sentence as a sentence enhancement ing statute. precedential interpretation sanc- an has

Such Heide, 69 Mich In Dickerson tions App this state. (1976), 303, 308-309; 244 NW2d Court stated: example of especially cogent "We find this statute would application of a where literal situation cause an and where unintended result unfortunate and further the intent literal dictates will

rejection of the the statute.” presumed

Every to be constitu- act is possible, required, wherever The courts are tional. to construe necessary validity. it is Oftentimes in favor of spirit purpose of the stat- prevail letter, Thomas v its strict over ute should App 486, 495; 228 Co, 58 Mich Power Consumers *7 (1975), People Adams, 34 Mich v Otis 786 NW2d (1971). App 546, 19 555; 192 NW2d Supreme Michigan in v Court Williams Our Secretary 202, 208; 60 State, 338 Mich NW2d (1953), particularly quotes approval 910 with Interpreta- compelling Endlich on the maxim from Statutes, § 295: tion of " ' Modifica- True Intent of Act. "Effect to be Given to statute, language Language. of a

tion of —Where construction, meaning grammatical ordinary and its leads to a manifest pur- apparent contradiction of the or enactment, to some inconvenience pose of the or in- presumably not hardship injustice, or absurdity, tended, it, modi- put upon which may be a construction (Emphasis handgun.” committing supplied.) while 705 v McDowell Bashara, P. J. meaning words, fies of the and even the structure of done, sometimes, the sentence. This is by giving meaning particular words; unusual sometimes altering collocation; their or by rejecting them alto- gether; by interpolating or words; other under influence, doubt, no of an irresistible conviction that the legislature possibly could not have intended what its signify, words and that the modifications thus made are mere corrections of language, careless really give the true intention. The ascertainment of the latter is rule, the cardinal or rather the object, end and of all construction; and design where the real legisla- ordaining statute, ture in although it precisely be not expressed, yet perceivable, plainly or ascertained with reasonable certainty, language of the statute given must be such a construction carry as will design effect, into though, even doing, in so the exact sacrifíced, letter of the law though be the construc- ’ ” be, indeed, tion supplied.) contrary to the letter.” (Emphasis See also Grand Rapids Crocker, 178, 219 Mich (1922). 183; 189 221 NW statute, with the language offensive re moved, is still an complete act within itself. It does not require references to other statutes its meaning, nor does it alter or amend another stat ute by reference to such, title. As it is not offensive to our state constitution.4 In scope application it can analogized to the habitual offender5 stat ute which the Michigan Supreme Court has found to be Pardee, constitutional. In re 13; Mich (1950), NW2d 466 den, cert 961; US 70 S Ct 989; 94 L (1950), Ed 1371 Hendrick, People v 247 NW2d 840

Critics of the view herein embraced contend also, Advisory Opinion Const art 25. See § re Constitution- ality 441, 472-473; (1973), of 1972 PA 208 NW2d 469 *8 (1865). People 481, Mahaney, 13 Mich 497 seq.; seq. MCL 769.10 et MSA 28.1082 et App of D. E. J. Holbrook, Jr., Legis- of the province invades the that our decision sincerely we believe that contrary, lature. To Legis- obvious intent we have sustained the construction. exercising proper judicial lature by Affirmed. (concurring). Judge concur with I

Beasley, J. in affirming. Bashara the constitutionality reasons for

My upholding as of statute now constituted Johnson, v Walter in are set forth 272 NW2d result). (concurring D. E. with with intent defendant assault 28.278, 750.83; murder, MSA commit MCL to during firearm the commis- with 28.424(2). 750.227b; MCL MSA felony, sion of allegation— are on the charges based same Both the door gun through fired a of that the defendant officers, police occupied by eight off-duty one van in the foot. Defendant was wounded whom his quash from the denial of motion to appeals or, compel to alternatively, of the counts or both them. The trial to elect between prosecutor did conclude that the case involves control- judge to which there is substan- ling question law as opinion, and that an ground tial difference materially from denial of the motion appeal litigation. advance ultimate termination 806.3(l)(a)(ii). GCR Defendant in the contends circumstances case, placed jeopardy by he would twice his both prosecution on having against defend prematurely I conclude that this issue is counts. provide raised. The Federal and state constitutions twice in put criminal cannot be that a defendant Const, V; Am Const art jeopardy. US § *9 People 707 v McDowell Opinion of D. E. Holbrook, Jr., J. But a defendant placed is not in jeopardy until he put is to trial before the facts; trier of jeopardy does not attach until jury impaneled or, trial, sworn in a bench until begins court Jorn, United States v hear evidence. 470, 400 US 479; 91 547; S Ct 27 L Ed (1971), 2d 543 Serfass v States, United 377, 420 US 388; 95 1055; S Ct 43 L (1975), Ed 2d 265 People Johnson, v Alvin 396 424, 431, Mich 3;n 240 People v (1976), NW2d 729 Gardner, 37 520, Mich App 525-526; 195 NW2d 62 Pribble, (1972), People v 72 Mich App 223; 249 (1976). NW2d 363 if Even it is true that conviction on both counts would constitute punish double ment, the mere fact that the defendant is charged with both does not put him twice in jeopardy. See Goodchild, People v 68 Mich App 236-237; den, 242 lv (1976), NW2d 465 (1976), 397 Mich 830 Jackson, McDaniel v 78 Mich App 218; 259 NW2d (1977). 563 At point, trial, this prior to defendant has yet to be placed once, let alone twice. For this reason I would affirm the trial court.

However, I disagree with the majority’s conclu- sion that there would be no double jeopardy viola- tion 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 case, least defendant may not be convicted of both the lesser greater offense.

Among guarantees encompassed the dou- ble jeopardy protection clause is against multiple for the same offense. North Carolina v Pearce, 395 717; US 89 2072; S Ct 23 L Ed 2d (1969). 656 It beyond dispute single that a act may violate more than one criminal statute where this is the Blockburger v clear intent. App 697 85 of D. E. 180; States, 284 US 299, 304; 52 S Ct 76 L United States, v United 386; 357 US Gore (1932), Ed 306 (1958), L 2d 1405 1280; Ed S Ct Bennett, 246, 248; 247 NW2d 368 71 Mich charged is of two offenses But where one other, included offense a lesser on the same act amount convictions for based both punishment. People v to unconstitutional double (1976), Martin, Peo- 303; 247 398 Mich NW2d (On Rehearing), ple v Stewart *10 (1977). NW2d 31 at the developed preliminary the facts

Based on examination, alleged that defendant’s appears it necessar- intent to murder was act of assault with A of felony-firearm. included offense ily a lesser offense is an offense lesser included necessarily the greater it to commit impossible such People v the lesser. having first committed without (1972), Patskan, 387 Mich 701, 713; 199 NW2d 458 Jones, 387; 236 NW2d People v Ora 395 Mich (1975). are never necessarily 461 Some offenses they on set of facts because any included others Jones, v 75 E.g., People no elements. share (1977) inde- 261, 272; (gross 863 254 NW2d gross intent to commit and assault with cency always necessarily offenses are indecency). Other consist of all included in others because latter E.g., People more. plus the elements of the former Hoffmeister, 394 Mich 155, 157, 1; 229 n NW2d Carter, (1975), 437- People v (1975) murder (second-degree NW2d murder). In these in first-degree included always question exclusivity, cases of mutual polar reference lesser included offenses is answerable an analysis the offense without to the elements of not But this is particular the facts of the case. are neces- which true. There are offenses always v McDowell of D. E. sarily lesser included offenses of others as a matter legal logical fact but not as a matter of necessity. necessary situations, In it such becomes purely legal analy- to elect between a and factual sis of lesser included offenses: "A necessarily included reasonably offense can mean always a lesser offense which would be committed when the main offense was committed. It can be decided any abstract without reference to an individual case; example, for always assault found in assault with intent which, Conversely, to kill. it could also be one matter, as a factual was shown at trial to have to, within, been a method not identical but included major crime. Thus felonious assault would be a lesser included offense of assault with intent to kill if the method of gun.” Koenig, assault was use of a Many-Headed Hydra of Lesser Included Offenses: A Courts, Michigan Herculean Task 1 DCL Rev supra, cases, In the Martin and Stewart Michigan Supreme adopted Court the factual anal- ysis of lesser included offenses. In both cases the Court held that convictions for delivery of heroin could not both be sustained *11 possession apart where there was no evidence of though from the cases, sale. theOn facts of those possession cases, not in all was incident to sale: "Testimony police at trial indicated that informant brought 1/2 ounce directly of heroin from defend- [sic] ant. The defendant personally cut the heroin and deliv- ered it to the informant. Defendant was in a (1) (2) two-count information with delivery posses- and sion of a certain grams 15.62 of heroin. There is no dispute over the fact that it grams was the same 15.62 of heroin in each count. present

"Possession of the heroin in this case was that necessary delivery. to its 85 of D. E. trial, there is at no adduced the evidence

"On lesser included possession was a unlawful doubt that delivery. offense of unlawful guilty defendant jury the found

"When in this record on the evidence delivery of this heroin of it. necessarily found him they " divide a elementary that the State cannot 'It parts according to time and single offense into several upon and im- separate prosecutions and base conduct pose separate necessary punishments for the various * * * single that crime. divisions of " drugs is an offense dis- possession of narcotic 'The the But in the instant case from the sale thereof. tinct single and clearly sale constituted possession and defined, legally is necessar- possession, as same act. sale, legally defined. part as ily a constituent drug of the narcotic is that only possession Where thereof, and it necessary for sale incident to and possession before or there was appear not that does sale, frag- State cannot apart from such after and separate dis- involvement into and the accused’s ment multiple convic- transactions to obtain tinct actions or separate convictions under such circum- tions * * * is not cured not stand. The error stances will permitted the two sen- the trial Court the fact that * * * concurrently. The conviction to run tences charge possession must be set upon the sentence 1972). (Me, Allen, 167, 172 v 292 A2d aside.’ State act may charged and tried for each "A defendant be However, tried when separate crime. that constitutes offenses, jury if the includes lesser for an act which guilt greater, not also finds defendant included offense.-The separately convicted of the lesser the same prohibition against multiple punishment charge. 'The by the form of the crime cannot be avoided it importance pleading assume such form of cannot in- permit to be convicted of both will defendant Greer, 2d 30 Cal greater offense.’ v cluded and Accord, 589, 599; United States 184 P2d (CA 8, 1975), Belt, cert den 423 US 516 F2d 873 *12 People v McDowell of D. E. (1976).” Martin, 46 L 96 S Ct Ed 2d 646 supra, (Emphasis supplied.) at 307-309.

In the Stewart Court stated: case, given ”In posses- sale be found without Likewise, possession may sion. be determined without However, depending upon sale. developed the facts at trial, possession when the circumstance is not severa- apart jury ble or from sale and the concludes the sale, guilty possession defendant together is then the blends single

with the sale so as to constitute one wrongful act.

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

In the case at concede that as a fact, matter of assault with intent to commit mur- necessarily der a lesser was included offense of felony-firearm. felony "felony-firearm” con- a) carrying sists of two elements: or b) committing attempting firearm, while or to (other felony carrying commit a than a concealed weapon). carrying Where the of a firearm is unre- underlying felony, lated to the committing carrying underlying felony and also for doing

a firearm while so is not double punishment. But to com- where a firearm is used underlying felony, underlying felony mit the included in because it is impossible by using a firearm to commit possessing carrying without at the same time carry- during felony. the firearm Possession or ing just necessary use, as and incidental 85 *13 Jr., Holbrook, J. of D. E. necessary was and incidental of heroin delivery In and Stewart. such to its in Martin only circumstances, one conviction can be sus- tained. goal Legisla disagree the

I do not with Discouraging ture. the use of firearms the com proper clearly matter for mission legislative crimes is Legislature However, the has concern. problem constitutionally imper the in a attacked making felony-firearm By manner. missible independent Legislature felony, the has under legislative intent. Most states which mined its own merely aug similar statutes have have enacted punishment crimes in which a mented the for Michigan Legisla used,1 the firearm is whereas separate felony. Where, here, as has created a ture felony, in the commission of a a firearm is used only Therefore if conviction can be sustained. underlying of the "lesser” a defendant is convicted felony- felony, convicted of he or she cannot be pun legislative intent, additional firearm and the during for use of a firearm the commis ishment felony, hand, if sion of a is defeated. On the other greater offense, a defendant is convicted of the imprisoned felony-firearm, only he or she be years years offense, for a first five for a for two years second offense and ten for a third offense— than could be all of which are shorter sentences imposed many of the "lesser” for conviction of Legislature Again intent of the felonies. defeated the statutory by adoption the scheme separate felony rather than which creates a enhancing merely crimes in the volving the use of a firearm. closing, compelled

In I to comment on what feel O’Donnell, generally, 91 Nev 542 P2d See Woofter v v McDowell Opinion of D. E. dangerous precedent by I believe to be a set holding By jeopardy ques- majority. that double through tions are resolved an examination "legislative majority essentially intent”, holds Legislature is free to determine whether protec- acts are its own are or not violative of the tions afforded citizens state and Federal Historically duty constitutions. it been has interpret provisions the courts to constitutional and to determine whether a act runs guarantee. afoul some constitutional No matter legislative intent, how clear a statute cannot deprive a citizen fundamental constitutional rights. readily *14 I concede that the intent of the Legislature is clear statute. However, even the clearest best of intentions cannot save the statute from its constitutional infirmity. A scheme which allows con- greater viction both lesser included deprives protections offenses a defendant of the afforded the double clauses of the state and Federal constitutions.