PEOPLE v MITCHELL
Docket No. 108135
Supreme Court of Michigan
Argued December 10, 1997. Decided April 1, 1998.
456 Mich 693
Dоcket No. 108135. Argued December 10, 1997 (Calendar No. 10). Decided April 1, 1998.
Shane G. Mitchell was charged in the Washtenaw Circuit Court with receiving or concealing stolen firearms or ammunition and possession of a firearm during the commission of a felony. The court, Kurtis T. Wilder, J., granted the defendant‘s motion to dismiss the felony-firearm сharge, holding that it would violate double jeopardy protections if he were prosecuted under both statutes. The Court of Appeals, MACKENZIE, P.J., and MARKEY and J. M. BATZER, JJ., affirmed in an opinion per curiam (Docket No. 186739). The people appeal.
In an opinion by Justice WEAVER, joined by Chief Justice MALLETT, and Justices BRICKLEY, BOYLE, and TAYLOR, the Supreme Court held:
A prosecution for possession of a firearm during the commission of a felony does not violate the prohibition against double jeopardy of the United States and Michigan Constitutions when the predicate felony is receiving or concealing a stolen firearm or ammunition.
Wherе the issue is one of multiple punishment rather than successive trials, the double jeopardy analysis involves whether there is a clear indication of legislative intent to impose multiple punishment for the same offense. If so, there is no double jeopardy violation. In this instance the Legislature clearly intended that the felony-firearm statute was to provide for an additional felony charge and sentence whenever a person possessing a firearm committed a felony other than the four explicitly enumerated in that statute.
Reversed and remanded.
Justice KELLY, joined by Justice CAVANAGH, dissenting, stated that the Legislature did not intend to impose punishment for possession of a firearm during the commission of a felony when the predicate felony involves the possession of a weapon, as contrasted with the use of a weapon.
Where two statutes prohibit violation of a single social norm, the Legislature generally is deеmed not to have intended multiple punishments. Therefore, it should not be readily assumed that multiple punishments were intended for one act violating both the receiving or concealing a stolen firearm and the felony-firearm statutes. Case
220 Mich App 439; 559 NW2d 105 (1996) reversed.
People v Walker, 167 Mich App 377; 422 NW2d 8 (1988) overruled.
Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Brian L. Mackie, Prosecuting Attorney, and David A. King, Assistant Prosecuting Attorney, for the people.
Long & Baker, L.L.P. (by Basil A. Baker), for the defendant-appellee.
WEAVER, J. Defendant was charged with receiving or concealing stolen firearms or ammunition1 and possession of a firearm during the commission of a felony (fеlony-firearm).2 Defendant brought a motion to dismiss the felony-firearm charge on double jeopardy grounds. The trial court granted the motion, holding that it would violate the Double Jeopardy Clause if he were prosecuted under both statutes. Trial was stayed while the prosecutor appealed. The Court of Appeals issued an opinion affirming the trial court‘s ruling.3 We reverse and remand.
The sole question before us is whether it is a violation of the United States and Michigan Constitutions’ prohibition against double jeopardy4 for defendant to
There are various protections flowing from the double jeopardy guarantee of the United States and Michigan Constitutions: it precludes a second prosecution for the same offense after acquittal or conviction, and also protects against multiple punishmеnts for the same offense. It is this last protection—protection against multiple punishments for the same offense—with which we are concerned today. This protection is designed to ensure that courts confine their sentences to the limits established by the Legislature. People v Sturgis, 427 Mich 392; 397 NW2d 783 (1986).
Where multiple punishment is involved, the Double Jeopardy Clause acts as a restraint on the prosecutor and the Courts, not the Legislature. Brown v Ohio, 432 US 161; 97 S Ct 2221; 53 L Ed 2d 187 (1977). Where “a legislature specifically authorizes cumulative punishment under two statutes, regardless of whether those two statutes proscribe the ‘same’ conduct under Blockburger,5 a court‘s task of statutоry construction is at an end and the prosecutor may seek and the trial court or jury may impose cumulative punishment under such statutes in a single trial.” Missouri v Hunter, 459 US 359, 368; 103 S Ct 673; 74 L Ed 2d 535 (1983). Where the issue is one of multiple punishment rather than successive trials, the
Thus, we need only determine whether the Legislature has authorized multiple punishments. To do so, we look to the subject, language, and history of the statutes. Robideau, supra at 486.
This Court has previously discussed the history and legislative intent of the felony-firearm legislation. In People v Morton, 423 Mich 650, 656; 377 NW2d 798 (1985), this Court said that “it [is] clear that the Legislature intended, with only a few narrow exceptions, that every felony committed by a person possessing a firearm result in a felony-firearm conviction.” In People v Sturgis, supra at 407, we noted that “[t]he language and structure of the stаtute thus contain no indication that the Legislature intended that a felony-firearm offense was a sentence-enhancement statute which precluded the charging and conviction of separate offenses.” In Sturgis, supra at 407-408, this Court also concluded that “[t]he legislative history of the statute also reflects а commitment to reach all but the excepted felonies.”
In 1990, the Legislature amended the felony-firearm statute. It added to the list of excepted felonies § 223 (unlawful sale of a firearm) and § 230 (alteration of identifying marks on a firearm). 1990 PA 321. We find it significant that in this amendment the Legislature did not add the felony at questiоn here today, § 535b, receiving or concealing stolen firearms or ammunition, to the list of excepted felonies. Nor did it add any concluding catch-all phrase such as to trigger an
We reverse the decision of the Court of Appeals, reinstate the charge against defendant, and remand for further proceedings.
MALLETT, C.J., and BRICKLEY, BOYLE, and TAYLOR, JJ., concurred with WEAVER, J.
KELLY, J. I respectfully dissent.
We have been asked to determine whether a person apprehended with a stolen firearm may be charged and convicted of both receiving or concealing a stolen firearm and felony-firearm. The defendant in this
In resolving the issue before us, the appropriate analysis begins with an inquiry into the intent of the Legislature. The object is to determine whether punishment under the two statutes in question for defendant‘s single act of possession violates the Double Jeopardy Clauses of the state and federal constitutions. People v Robideau, 419 Mich 458, 486; 355 NW2d 592 (1984).
We examine the subject, language, and history of the statutes. Id. at 486. We are mindful that the Legislature is free to determine what constitutes a criminal offense and, if it specifically intends, may authorize several penalties for a single criminal act. People v Wakeford, 418 Mich 95, 111; 341 NW2d 68 (1983).
I believe that the majority in this case has glossed over аn important principle used in construing legislative intent: Where two statutes prohibit violation of a single social norm, albeit in somewhat different manners, the Legislature is normally deemed not to have intended multiple punishments. Robideau, supra at 487.
The two statutes under scrutiny in this case are
Both statutes prohibit violation of the same social norm: deterrence of the unlawful possession of firearms and ammunition. Therefore, it should not be readily assumed that the Legislature intended multiple punishments for one act violating both statutes.
The majority сoncludes that the Legislature intended the felony-firearm statute to provide an additional sentence for anyone possessing a firearm who commits a felony other than those four explicitly enumerated. Ante at 698. It cites language from People v Sturgis4 for support. However, Sturgis can be distinguished from the case at hand and, in fact, bolsters defendant‘s position. In Sturgis, the defendant was convicted of felonious assault, possession of a firearm during the commission of a felony, and carrying a concealed weapon. This Court held:
We conclude that the history, language, and structure of the statutes indicate that felony-firearm and concealed weapоn offenses are distinct offenses which may be separately punished in a single trial when the concealed weapon
offense is not the predicate of the felony-firearm offense. [Id. at 410.]
The rationale in Sturgis is consistent with that in Wayne Co Prosecutor v Recorder‘s Court Judge.5 There, it was found appropriate to convict the defendant of both second-degree murder and possession of a firearm during the commission of a felony. The Court ruled that the two crimes were separate: murder does not require the use of a firearm and felony-firearm does not require the predicate felony of murder.6
The majority overrules People v Walker, 167 Mich App 377; 422 NW2d 8 (1988). That case is distinguishable from the present case, also. In Walker, the Court оf Appeals held that assault with intent to do great bodily harm less than murder was sufficient to serve as the underlying felony for the felony-firearm conviction. Thus, in Sturgis, Wayne Co Prosecutor, and Walker, the underlying felony involved an act separate from possession of a firearm during the commission of a felony.
The same rationale has been aрplied by the United States Supreme Court. In Ball v United States,7 the defendant was convicted of receipt of a firearm by a convicted felon and possession of a firearm by a convicted felon. Predicated upon a review of the intent of
Against this backdrop of case law, it is implausible to cоnclude that the Michigan Legislature intended a defendant be punished twice for a single instance of possession of a single gun. We have before us a case in which the intent of the Legislature is so apparent that it overrides the literalness of the “except” clause relied on by the majority. It is nоteworthy that the felonies listed in the “except” clause of the felony-firearm statute all involve possession of a firearm. It follows that the Legislature did not intend to impose duplicate punishment when the predicate felony involves the possession of a weapon, as contrasted with the use of a weapon.
Past decisions of this Court suggest that the intent of the Legislature is not that a possession-based firearm offense should become the predicate for a felony-firearm charge. Certainly, a contrary intent is not inevitable from a common-sense reading of the statute and its legislative history.
Any lingering uncertainty or ambiguity should be resolved in favor of lenity. As this Court stated in Robideau, “If no conclusive evidence of legislative intent can be discerned, the rule of lenity requires the
Therefore, I would affirm the decision of the Court of Appeals.
CAVANAGH, J., concurred with KELLY, J.
Notes
Although the Court in Wayne Co Prosecutor applied the Blockburger test, it recognized that issues challenging multiple punishment are to be decided by determining legislative intent. Wayne Co Prosecutor, supra at 389. Blockburger v United States, 284 US 299; 52 S Ct 180; 76 L Ed 306 (1932).A person who receives, conceals, stores, barters, sells, disposes of, pledges, or accepts as security for a loan a stolen firearm or stolen ammunition, knowing that the firearm or ammunition was stolen, is guilty of a felony, punishable by imprisonment for not more than 10 years or by a fine of not more than $5,000.00, or both.
470 US 856; 105 S Ct 1668; 84 L Ed 2d 740 (1985).A person who carries or has in his or her possession a firearm when he or she commits or attempts to commit a felony, except a violation of section 223 [unlawful sale of a firearm], section 227 [carrying a concealed weapon], 227a [unlawful possession of a firearm by a licensee] or 230 [alteration of identifying marks on a firearm], is guilty of a felony, and shall be imprisoned for 2 years.