*1 1978]
PEOPLE v MOORE 31, 1978, August No. 77-4491. Submitted at Detroit. Decided Docket 5, December 1978. convicted, plea guilty, of two of Ezell Moore was on his of counts robbery a firearm while Detroit, Michael J. felony, of a Recorder’s Court of commission Conner, conviction, appeals felony-firearm J. Defendant claiming subjects jeopardy. that it him to double Held: felony-firearm permissible conviction is not because it subjected not violates defendant’s to double However, felony-firearm jeopardy. because the statute was in- statute, sentence-augmenting tended as a defendant’s sen- upheld. tence is part, part. Reversed in affirmed in Gillis, J., J. H. agrees felony-firearm dissented. He that stand, being doubly conviction cannot because the defendant punished committing while armed with a rifle. The evidence used to the armed is the identical evidence used to stand, punishment prescribed because conviction cannot the statute cannot be for commission of the under- lying felony.
References for Points in Headnotes [1, 2d, 9, 182-193, 546, 21 Am Jur Criminal Law 548. §§ 2d, seq. 40 Am Jur Homicide 549 et §§ 2d, 4, 44, Robbery 67 Am Jur 48. §§ right, sentence, of, imposing
Court’s to hear evidence or to consider, other offenses committed defendant. ALR2d 768. [4] [2-4] Construction and 67 Am Jur 25 ALR FED 678. tral and Safe Streets Act of 1968 who uses firearm to commission imprisonment 21 Am Jur 2d, Robbery 2d, of, in addition to Criminal Law application Federal commit, § 75. punishment provided or carries firearm §§ provision 182-193, shall be sentenced (18 USCS 546. of Omnibus Crime Cen- § 934(c)) unlawfully during for such to term felony.
Opinion of the Court Robbery Felony Firearm —Statutes— 1. Criminal Law —Armed — Augmentation —Constitutional Law. Sentence *2 A defendant convicted of an armed which was committed of the with a firearm not also be convicted of violation proscribes felony commission of a while armed statute which possessing felony-firearm with or a firearm because the convic- a not to be tion constitutes violation the defendant’s however, subjected jeopardy; because that statute is to double statute, sentence-augmenting intended to be a the defendant’s may be sentence for the armed enhanced (MCL 750.227b, 750.529; under the statute MSA 28.797). 28.424[2], Gillis, J. H. P.J. Dissent Multiple 2. Criminal Law — Convictions —Elements Offenses— Facts of Case. necessary, It is where a defendant has been convicted of more offense, than one to examine both the elements of the crimes particular involved and the facts of the case to determine being punished whether the defendant is for twice the same Multiple Legislature. 3. Criminal Law — Punishment —Power of descriptions Punishment for different of the same offense is Legislature beyond power impose. to Robbery Felony 4. Criminal Law —Armed — Firearm —Double Pun- ishment —Evidence. felony-ñrearm
A defendant’s conviction for violation of the stat- ute, arising robbery, punish- from an armed constitutes double ment where the evidence to each of the armed element robbery charge is the identical evidence charge. felony-ñrearm Statutes—Felony-Firearm—Conviction—Pun- 5. Criminal Law — ishment. language felony-ñrearm statute is clear and unambi- gous interpretation Legislature clearly necessary; and no separate intended to create an offense and distinct from underlying felony impose separate punishment and to a for offense; felony-ñrearm where a defendant’s conviction stand, offense cannot for that offense cannot be (MCL underlying felony commission of 28.424[2]). People Kelley, A. Robert Frank J. General, Attorney Derengoski, Cabalan, L. William General, Solicitor Wilson, Principal Edward R. Prosecuting Attorney, Louisell, Assistant and Paul C. Attorney, Appeals, people. Prosecuting Attorney, Blank, Daniel J. appeal. on for defendant Gillis, P.J., H. and V. J. Brennan Before: J. Bashara, JJ.
Bashara,
accepts the facts as
majority
J. The
in
In view of the
forth
our brother’s dissent.
set
expressed
Bashara
Judge
opinion
McDowell,
.697;
(1978),
App
272 NW2d
People Blount,
Judge
and that of
Brennan
501;
defendant’s sentence as an of penalty underlying felony upheld. is in in part; part.
Reversed affirmed Brennan, J., J. concurred. V. (dissenting). Gillis, appeals P.J. Defendant of plea-based
as of from his two 750.529; MCL MSA robbery, counts 28.797, possession of a firearm and one count MCL while the commission of a 28.424(2). arose out of charges The 12, and incident wherein defendant July companions City two entered a bar Detroit, and a cus- took wallets from the owner tomer, the cash money and removed some from register. companions was One of defendant’s armed with a rifle. sawed-off dispute his con- appeal,
On defendant does not but chai- victions on the armed counts 87 by H. J. raising "felony-firearm” conviction, lenges four position majority’s disagree con- with issues. cerning is that this conviction claim defendant’s jeopardy. by principles of double barred protects against jeopardy guarantee double against multiple offense. same 711, 717; S Ct Pearce, 395 US North Carolina (1969). Michigan, it is In 2072; 23 L Ed 2d the elements examine both particular facts and the involved crimes being is a defendant whether case to determine punished In for the same twice (On Rehearing), 540; 256 NW2d Stewart multiple convictions addressed the Court single arising In that case sale of heroin. out of a possession charged with both was the defendant recognizing delivery that While of heroin. possible theory these acts without to do one of it is particular facts other, the Court examined possession was of the case and concluded merely did not consti- incidental to the sale and separate offense: tute a case, posses- given may be found without "In a sale Likewise, without possession be determined sion. developed at depending upon the facts sale. trial, not severa- is when the circumstance apart jury and the concludes ble or from sale sale, possession blends guilty of then the defendant single one together with the so as to constitute sale wrongful act. *4 punished’ Stewart not be 'double
"Defendant
a
in this case was
convicting
possession,
him of
which
very
qua
prerequisite or the sine
non
'necessary’
Mich at
400
sale for which he was also convicted.”
Martin,
303; 247 NW2d
People
549. See also
(1976).
303
People
Gilus,
case
Examination
of the facts
instant
me to conclude that defendant’s
leads
It
is
the
count cannot
stand.
on
pos-
robbery
to commit an armed
without
possible
or an
sessing
dangerous weapon
a firearm. Any
used or fashioned
a manner
to lead
article
dangerous
to
it
is a
reasonably
victim
believe
is
to
the "armed” element
weapon
satisfy
sufficient
750.529; MSA 28.797. How-
of this offense. MCL
ever,
possession
in the instant
case
of a rifle was
armed
charges.
In
gravamen
effect,
for com-
being doubly punished
defendant
is
a
armed with a rifle. Pun-
mitting
robbery while
descriptions
ishment
for different
same
power
Legislature
offense is
to
beyond
States,
See Gore v United
386, 392;
357 US
impose.
(1958).
1280;
78 S Ct
year sentence by relying upon People v 85 697; con- 272 NW2d which strued the statute to a sentencing enhancement disagree law. with this resolution of respectfully the double jeopardy problem. 28.424(2)
MCL in pertinent reads part as follows: "(1) A a who carries or has his attempts
firearm at the time he commits or felony, to commit except 227 or section violation of section 227a, guilty imprisoned and shall be section, years. Upon a second conviction under this *5 Mich by J. H. Upon a third or person imprisoned years. for 5 shall be section, subsequent conviction under this imprisoned years. for 10 shall be "(2) prescribed this imprisonment The term of imposed for in addition to the sentence section shall be attempt or the to commit felony the conviction of the consecutively with and be served and shall imprisonment imposed for the any term of preceding attempt felony or commit felony.” language ambiguous. the lan
This guage is not Where unambiguous, no
of a statute is clear interpretation necessary. People Carey, 382 285, 292; 170 Acme Mes NW2d senger Compensation Unemployment Co v Service (1943). Comm, 709; 11 NW2d Legislature clearly intended to create an underlying separate and distinct from the offense punishment upon felony impose separate and to Having person guilty determined of this offense. stand, I cannot do not that defendant’s conviction prescribed think that the the stat- nevertheless, can, ute for its violation underlying felony. for commission of would, therefore, order defendant’s conviction felony-firearm charge on the vacated and sen- tence for this offense aside. set