PEOPLE v WITT
Docket No. 74975
Court of Appeals of Michigan
Submitted April 16, 1984. Decided January 7, 1985.
140 Mich App 365
1. There was insufficient evidence to support defendant‘s felony-firearm plea. The case is remanded to the trial court to pеrmit the prosecutor to establish the possession element of felony-firearm. If the prosecutor is able to do so and there is no contrary evidence, the felony-firearm conviction shall be affirmed. If the prosecutor is unable to do so, the felony-firearm conviction shall be set aside. If contrary evidence is produced, the matter shall be treated as a motion to withdraw the guilty plea to felony-firearm and the court shall decide the matter in the exercise of its discretion.
2. No double jeopardy violation occurs where thе Legislature intends to permit multiple convictions under separate statutes based on a single criminal enterprise. The Legislature intended to permit multiple punishment under both the armed robbery and vault robbery statutes.
Affirmed.
SHEPHERD, P.J., concurred but would hold that defendant‘s convictions of vault robbеry and armed robbery did not arise out of the same conduct so there is no need to even consider whether two such convictions for the same conduct would
REFERENCES FOR POINTS IN HEADNOTES
[1] 21 Am Jur 2d, Criminal Law § 167.
79 Am Jur 2d, Weapons and Firearms §§ 5, 24.
[2] 21 Am Jur 2d, Criminal Law § 489.
[3-7] 21 Am Jur 2d, Criminal Law §§ 277-279.
73 Am Jur 2d, Statutes § 145.
[5, 6] 67 Am Jur 2d, Robbery § 48.
OPINION OF THE COURT
1. CRIMINAL LAW - FELONY-FIREARM.
A defendant may be guilty of violating the felony-firearm statute if it can be shown that he either personally possessed a firearm during the commission of a felony or that he procured, counselled, aided, or abetted and so assisted another in obtaining or retaining possession of the fireаrm.
2. CRIMINAL LAW - GUILTY PLEAS - FACTUAL BASIS FOR PLEAS - INFERENCES.
A factual basis for acceptance of a guilty plea exists if an inculpatory inference can reasonably be drawn by a jury from the facts admitted by the defendant, even if an exculpatory inference could also be drawn and defendant asserts the latter is the correct inference.
3. CRIMINAL LAW - CONSTITUTIONAL LAW - DOUBLE JEOPARDY - MULTIPLE PUNISHMENT.
The sole inquiry in determining whether the multiple punishment prohibition of the double jeopardy clause has been violated is whether the Legislature intended to permit multiple convictions under separate statutes based on a single criminal enterprise; if so, no double jeopardy violation occurred (
4. CRIMINAL LAW - CONSTITUTIONAL LAW - DOUBLE JEOPARDY - MULTIPLE PUNISHMENT.
The intent of the Legislature in imposing punishment for violation of criminal statutes should be determined for purposes of double jeopardy analysis by reference to the subject of the statutes, their language, and their history.
5. CRIMINAL LAW - CONSTITUTIONAL LAW - DOUBLE JEOPARDY - ARMED ROBBERY - VAULT ROBBERY.
The Legislаture intended to permit multiple punishment under both the armed robbery and vault robbery statutes for a single criminal transaction; convictions under both statutes for the same criminal conduct does not violate double jeopardy prohibi-
PARTIAL CONCURRENCE AND PARTIAL DISSENT BY SHEPHERD, P.J.
6. CRIMINAL LAW - CONSTITUTIONAL LAW - DOUBLE JEOPARDY - ARMED ROBBERY - BANK ROBBERY.
Convicting a defendant of armed robbery and bаnk robbery for the very same conduct, absent a clear indication that the Legislature intended multiple punishments under those statutes, violates the double jeopardy clauses of the United States and Michigan Constitutions (
7. CRIMINAL LAW - DOUBLE JEOPARDY - MULTIPLE PUNISHMENT.
Statutes prohibiting conduct that is violative of distinct social norms сan generally be viewed as separate and amenable to permitting multiple punishments; however, where the evidence of legislative intent is inconclusive, the rule of lenity requires the conclusion that separate punishments were not intended.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, L. Brooks Patterson, Prosecuting Attorney, Robert C. Williams, Chief Appellate Counsel, and Lisa Varnier, Assistant Prosecuting Attorney, for the people.
William G. Wolfram, for defendant on appeal.
Before: SHEPHERD, P.J., and BEASLEY and W. J. CAPRATHE,* JJ.
PER CURIAM. Defendant was convicted on his plea of guilty of bank, safe or vault robbery,
* Circuit judge, sitting on the Court of Appeals by assignment.
Was there a sufficient factuаl basis to support defendant‘s guilty plea to felony-firearm?
In order to support a felony-firearm conviction under People v Johnson, 411 Mich 50, 54; 303 NW2d 442 (1981), it must be shown that defendant either personally possessed a firearm during the commission of a felony or that defendant procured, counselled, aided, or abetted and so assisted another in obtaining or retaining pоssession of the firearm.
A factual basis for acceptance of a guilty plea exists if an inculpatory inference can reasonably be drawn by a jury from the facts admitted by the defendant, even if an exculpatory inference could also be drawn and defendant asserts the latter is the correct inference. Guilty Plea Cases, 395 Mich 96, 130; 235 NW2d 132 (1975).
In the present case, the prosecutor tacitly admits that the defendant‘s statements at the plea proceeding did not establish a basis for a reasonable inference that he personally possessed a firearm during commission of the robberies or that he assisted the co-perpetrator in obtaining or retaining possession of a firearm. However, the prosecutor argues that a sufficient factual basis may be established through independant evidence, i.e., he cites testimony takеn at the preliminary examination in this case. Therefore, we remand the case to
Do defendant‘s convictions of vault robbery and armed robbery violate the constitutional prohibitions against double jeopardy,
According to defendant‘s testimony at the plea proceeding, on December 27, 1982, he and Donald Fritz made an unsuccessful attempt to rob an armored car. Defendant stated that Fritz took the guard‘s gun and fired a shot, whereupon the guard fainted. It is a reasonable inference from defendant‘s statements that Fritz was armed with another weapon prior to taking the guard‘s gun. Defendant testified that he dissuaded Fritz from shooting the guard and that both men then ran away. The only property taken was the guard‘s gun. Defendant stated that he knowingly participated in the attempt to rob the armored car and that he knew Fritz had a gun.
Defendant contends that his convictiоns of vault robbery and armed robbery were based on the same criminal conduct and violated the double jeopardy clauses of the United States and Michigan Constitutions.
In People v Robideau, 419 Mich 458; 355 NW2d 592 (1984), a four-member majority of the Supreme Court established a new test to determine whether the “multiple-punishment” prohibition of the dou-
This Court finds that there is a legislative intent to permit punishment under both the vault robbery statute and the armed robbery statute. The former statute is apparently aimed at the protection of funds kept in a building, bаnk, safe, vault or other depository of money, as well as the protection of persons charged with guarding the money and those otherwise in custody of the money. Neither use of a weapon nor an actual taking of money or property is required under the vault robbery stаtute. It is also clear from the statute that the offense may be committed without the
We conclude that the Legislature did intend to permit multiple punishment under both the armed robbery and vault robbery statutes and accordingly reject defendant‘s double jeopardy challenge. Affirmed.
SHEPHERD, P.J. (concurring in part and dissenting in part). I agree with the majority‘s decision to remand this case to permit the prosecutor to establish a factual basis for the plea of guilty to felony-firearm. I also agree that the convictions for armed robbery and bank robbery do not constitute double jeopardy. However, I would reach the latter result by a different route than does the majority, since I disagree with its apparent holding that a defendant may be convicted of armed robbery and bank robbery for the very same conduct.
In People v Robideau, 419 Mich 458, 486; 355 NW2d 592 (1984), the Supreme Court held that punishment under more than one provision of the Penal Code is permitted if the Legislature so intended. The Court stated that “[s]tatutes prohibiting conduct that is violative of distinct social norms can generally be viewed as separate and amenable to permitting multiple punishments“. Id., 487. Where the evidence of legislative intent is inconclusive, “the rule of lenity requires the con-
The majority correctly note that violation of the bank robbery statute does not necessarily require a larceny from a person or the use of a weapon.
In the instant case, however, defendant‘s convictions of bank robbеry and armed robbery did not arise from the same conduct. The bank robbery