PEOPLE v THOMPSON
Docket No. 123499
Court of Appeals of Michigan
Submitted April 3, 1991. Decided May 6, 1991.
189 Mich App 85
Leave to appeal sought.
The Court of Appeals held:
1. Operаbility of the firearm is not an element of the offense of possession of a firearm during the commission of a felony. The conviction was not infirm.
2. The trial court failed to resolve the defendant‘s challenge to а claimed inaccuracy in the presentence report. The case must be remanded for the сourt to clarify whether the disputed matter played a role in its sentencing decision. If it did, the defendant must be resentenced and the court must resolve the challenge pursuant to
Affirmed in part and remanded.
FITZGERALD, J., dissenting from the majority‘s conclusion that operability of a firearm is not an element of the offense of possession of a firearm during the commission of a felony, stated that the felony-firearm conviction should be reversed because the defendant‘s handgun had a broken hammer which could not readily be repaired.
CRIMINAL LAW — FELONY-FIREARM — OPERABILITY OF FIREARM.
Operability of a firearm is not an element of the offense of
REFERENCES
Am Jur 2d, Weapons and Firearms § 9.
Fact that gun was broken, dismantled, or inoperable as affecting criminal responsibility under weapons statute. 81 ALR4th 745.
Frank J. Kelley, Attоrney General, Gay Secor Hardy, Solicitor General, John D. O‘Hair, Prosecuting Attorney, Timothy A. Baughman, Chief of Research, Training and Appeals, and Don W. Atkins, Principal Attorney, Appeals, for the people.
Mark R. Hall (James C. Hall, of Counsel), for the defendant on appeal.
Before: DANHOF, C.J., and GRIFFIN and FITZGERALD, JJ.
GRIFFIN, J. Following a jury trial, defendant was convicted оf one count of assault with intent to commit armed robbery,
In his first argument on aрpeal, defendant contends that because the handgun he used was inoperable in that it had a broken hammer, his conviction of felony-firearm cannot stand. We disagree. Operability is not and has never beеn an element of felony-firearm. People v Poindexter, 138 Mich App 322, 333; 361 NW2d 346 (1984); also see People v Garrett, 161 Mich App 649, 653; 411 NW2d 812 (1987), and People v Pierce, 119 Mich App 780; 327 NW2d 359 (1982). To the extent People v Huizenga, 176 Mich App 800; 439 NW2d 922 (1989), can be read to require otherwise, we reject its reasoning. It has lоng been the practice of this Court to apply a reasonable interpretation of the felоny-firearm statute in order to sustain
Defendant next contends that he is entitled to resentencing because the trial court failed to resolve a claimed inaccuracy in the presentence report. At sеntencing, the following exchange occurred:
The Court: Mr. Collins, time and date set for sentencing. Have you rеviewed the presentence report for errors, additions, corrections?
Mr. Collins [defense counsel]: Yes, Your Honor.
The Court: Anything you‘d like to bring to my attention?
Mr. Collins: There is only one correction in the report. It states that Mr. Thompson, while a juvenile, based on what he said, fired a shot at a police officer.
The Court: That‘s what it says.
Mr. Collins: Correct. He informs me that he informed the probation officer that he wаs in a car as a juvenile and an officer fired a shot at him. And I believe that report reflects he has no juvenile record.
The Court: No. It says that he‘s overage, and therefore the record is destroyed. He might have a juvenile record; he might not. But because he‘s overage, the juvenile people destroy those things. And you‘re telling me, I guess, Miss MacLeod is sufficiently dimwitted that she doesn‘t understand the difference between a police officer shot at me versus I shot at a police officer.
Mr. Collins: By no means am I saying that at аll, Your Honor. I just respectfully ask the court to disregard that segment of the presentence report bаsed on what Mr. Thompson had informed me. That notwithstanding that, the facts are factually accurate.
We agree with defendant that the trial court
Affirmed in part, and remanded. We do not retain jurisdiction.
DANHOF, C.J., concurred.
FITZGERALD, J. (dissenting in part). I respectfully dissent from the majority‘s conclusion that operability is not an element of felony-firearm for the reasons stated in People v Huizenga, 176 Mich App 800; 439 NW2d 922 (1989) (a pistol as defined under the concealed weapons statute must be operable), and People v Sanchez, 98 Mich App 562, 567; 296 NW2d 312 (1980), (M. F. CAVANAGH, J., dissenting). The tеstimony established that the firearm which defendant carried had a broken hammer which could not be readily repaired. Defendant‘s conviction for felony-firearm should be reversed.