People v. Mitchell
559 N.W.2d 105
Mich. Ct. App.
1997
Check Treatment
Per Curiam.

Defendant was charged with receiving or concealing a stolen firearm, MCL 750.535b; MSA 28.803(2). That offense also served as the predicate felony for a charge of possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). Following a hearing, the trial court dismissed the felony-firearm charge on double jeopardy grounds. The people appeal by leave granted. We affirm.

The United States and the Michigan Constitutions protect a person from being twice placed in jeopardy for the “same offense.” US Const, Am V; Const 1963, art 1, § 15. The Double Jeopardy Clause provides three related protections, forbidding (1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3) the imposition of multiple punishments for the same offense. People v Torres, 452 Mich 43, 64; 549 NW2d 540 (1996). This case involves the prohibition against imposing multiple punishments for the same offense. In this context, the term “same offense” applies to overlapping conduct that violates *441 more than one statute. People v Sturgis, 427 Mich 392, 399; 397 NW2d 783 (1986).

In cases such as this one, involving multiple punishment at a single trial, the issue whether two convictions involve the same offense for purposes of the protection against multiple punishment is one of legislative intent. Sturgis, supra, p 400; People v Robideau, 419 Mich 458, 484; 355 NW2d 592 (1984).

MCL 750.535b; MSA 28.803(2), the receiving or concealing a stolen firearm statute, provides in part:

(2) 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.

MCL 750.227b; MSA 28.424(2), the felony-firearm statute, provides:

(1) 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 licensee] or 230 [alteration of identifying marks on a firearm], is guilty of a felony, and shall be imprisoned for 2 years.

In enacting the felony-firearm statute, the Legislature intended to authorize punishment for both a weapon possession offense and felony-firearm growing out of the same criminal episode, provided that the weapon offense is not the predicate of the felony-firearm offense. Sturgis, supra, p 410; People v Peyton, 167 Mich App 230, 235; 421 NW2d 643 (1988). As explained by this Court in People v Walker, 167 Mich *442 App 377, 385; 422 NW2d 8 (1988), a case involving possession of a short-barreled shotgun and felony-firearm:

[T]he Legislature’s intent was to preclude a [weapon] possession offense from serving as the underlying felony for felony-firearm. However, the language of the statutes does not suggest that possession of a firearm and felony-firearm convictions cannot occur simultaneously so long as a different offense is used as the underlying felony for felony-firearm,. [Emphasis added.]

See also People v Booker (After Remand), 208 Mich App 163, 175; 527 NW2d 42 (1994) (“The Legislature intended to authorize multiple convictions for felony-firearm and possession of a short-barreled shotgun where the possession offense did not serve as the underlying felony for the felony-firearm conviction.”).

Relying on People v Guiles, 199 Mich App 54; 500 NW2d 757 (1993), and People v Cortez, 206 Mich App 204; 520 NW2d 693 (1994), the people contend that, because receiving or concealing a stolen firearm is not one of the weapons offenses specifically referenced in the felony-firearm statute, the Legislature must not have intended to preclude that offense from serving as the predicate felony for a felony-firearm conviction. We decline to read those cases so narrowly. Guiles and Cortez both concerned a different class of predicate offenses, i.e., offenses involving the discharge of a weapon. The receiving and concealing a stolen firearm offense involved here, on the other hand, like the offenses listed in the felony-firearm statute and the possession of a short-barreled shotgun offense in Walker and Booker, is a possessory offense. While the Legislature has authorized multiple punishments where the act giving rise to the predicate fel *443 ony is distinct from a possessory offense, mere possession of a weapon, without more, cannot serve as the predicate for a felony-firearm charge. Walker, supra, pp 384-385.

In this case, defendant was charged only with receiving or concealing a stolen firearm and felony-firearm, making the weapon offense the predicate felony for felony-firearm. Because the felony of receiving a stolen firearm — a possession offense — is the underlying offense supporting the felony-firearm offense, defendant cannot be charged with both crimes without violating his right to be free from double jeopardy. Walker, supra; Booker, supra. Accordingly, the trial court properly dismissed the charge of felony-firearm.

Affirmed.