Opinion
Docket No. 77-2649.
Decided September 20, 1978.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, and Timothy A. Baughman, Assistant Prosecuting Attorney, for the people.
Bruce R. Saperstein, for defendant.
Before: R.B. BURNS, P.J., and BRONSON and D.F. WALSH, JJ.
Defendant pled guilty to robbery armed, MCL 750.529; MSA 28.797, and possession of a firearm during commission of a felony, MCL 750.227b; MSA 28.424(2), and appeals. We affirm.
Although defendant argues that he did not knowingly and understandingly waive various constitutional rights before pleading guilty, the trial court complied with GCR 1963, 785.7. A knowing and understanding waiver was implicit in the plea procedure.
Defendant's argument that the felony-firearm statute, MCL 750.227b; MSA 28.424(2), is unconstitutional because it amended a large number of statutes without re-enactment and publication, contrary to Const 1963, art 4, § 25, is without merit, since amendment by implication is not the evil sought to be avoided by the constitutional provision. Advisory Opinion re Constitutionality of 1972 PA 294, 389 Mich. 441, 471-474; 208 N.W.2d 469, 476-478 (1973).
Defendant also argues that his felony-firearm conviction must be set aside because it violates constitutional prohibitions against double jeopardy. US Const, Am V, Const 1963, art 1, § 15.
The double jeopardy clause provides that no person shall "be subject for the same offense to be twice put in jeopardy".
For purpose of analysis we assume the double jeopardy protection under state and Federal constitutions is equivalent.
"[The clause] serves principally as a restraint on courts and prosecutors. The legislature remains free under the [d]ouble [j]eopardy [c]lause to define crimes and fix punishments; but once the legislature has acted courts may not impose more than one punishment for the same offense and prosecutors ordinarily may not attempt to secure that punishment in more than one trial." Brown v Ohio, 432 U.S. 161, 165; 97 S Ct 2221, 2225; 53 L Ed 2d 187, 193-194 (1977).
Because many statutory crimes are duplicative, it is well established that separate statutory crimes may be the "same offense" under the double jeopardy clause, even though they are not identical in either constituent elements or actual proof. Brown v Ohio, supra, at 164; 97 S Ct at 2224; 53 L Ed 2d at 193. Each case ultimately turns upon whether the Legislature intended a particular act to be punished by only one or more statutes. See Gore v United States, 357 U.S. 386; 78 S Ct 1280; 2 L Ed 2d 1405 (1958). Unfortunately, it is rarely possible to divine legislative intent in this area, as the multiple punishment issue rarely receives explicit legislative consideration. Gore v United States, supra, at 394; 78 S Ct at 1285; 2 L Ed 2d at 1411 (Warren, C.J., dissenting). As a consequence the courts have developed tests to determine whether separate statutory crimes are the "same offense". See, e.g., Harris v Oklahoma, 433 U.S. 682; 97 S Ct 2912; 53 L Ed 2d 1054 (1977), Brown v Ohio, supra, Blockburger v United States, 284 U.S. 299; 52 S Ct 180; 76 L Ed 306 (1932), People v Stewart (On Rehearing), 400 Mich. 540; 256 N.W.2d 31 (1977), People v Martin, 398 Mich. 303; 247 N.W.2d 303 (1976).
Although it may be argued with some force that application of the above tests to the instant case would indicate the presence of a double jeopardy problem, but see, e.g., Kowalski v Parratt, 533 F.2d 1071 (CA 8, 1976), cert den 429 U.S. 844; 97 S Ct 125; 50 L Ed 2d 115 (1976), resort need not be had to the tests where the legislative intent is, as here, apparent.
The statute applies by its terms to all felonies except those explicitly excluded.
"A person who carries or has in his possession a firearm at the time he commits or attempts to commit a felony, except the violation of section 227 [MCLA 750.227; MSA 28.424 — carrying a concealed weapon] or section 227a [MCLA 750.227a; MSA 28.424 (1) — unlawful possession of a pistol by a licensee], is guilty of a felony, and shall be imprisoned for 2 years." MCL 750.227b; MSA 28.424(2).
Expressio unius est exclusio alterius. "Felony" includes robbery armed. MCL 750.529; MSA 28.797. By this statute the Legislature has attempted to make certainty of minimal punishment the standard where firearms are involved in the commission of felonies. The minimal punishment purpose applies with equal force to robbery armed crimes as to other crimes. As it cannot be doubted that the Legislature could have amended the robbery armed statute to add as a proviso that there be a minimal punishment where the dangerous weapon is a firearm, without offending the double jeopardy clause, see Gore v United States, supra, there is no double jeopardy impediment to its attainment of the same goal by separate statute.
Since the Legislature intended the type of result obtained in the instant case, the convictions do not violate double jeopardy protection.
Affirmed.
I concur in the opinion of Judge R.B. BURNS, but write separately to state my reasoning.
At issue in this case is the meaning of the constitutional prohibition of double jeopardy. Double jeopardy has three different aspects: it bars a second prosecution for the same offense after acquittal, it bars a second prosecution for the same offense after conviction, and it protects against multiple punishment for the same offense. North Carolina v Pearce, 395 U.S. 711; 89 S Ct 2072; 23 L Ed 2d 656 (1969).
US Const Am V; Const 1963, art 1, § 15.
The multiple punishment protection of the double jeopardy clause was recognized very early in American jurisprudence. See Ex parte Lange, 85 US (18 Wall) 163; 21 L Ed 872 (1874), North Carolina v Pearce, 395 U.S. 711; 89 S Ct 2072; 23 L Ed 2d 656 (1969).
The context in which the multiple punishment issue arose in Lange was that Lange was sentenced to a statutory maximum term of one year in prison without being allowed credit for time served under a previous invalid sentence for the same conviction. This was held to be unconstitutional multiple punishment. In Pearce, the Court held that the constitutional multiple punishment protection requires that punishment already exacted be fully credited in imposing sentence after a new conviction for the same offense.
Cases involving multiple punishment issues similar to that in the case at bar have found no constitutional violation. See Kowalski v Parratt, 533 F.2d 1071 (CA 8, 1976), cert den 429 U.S. 844; 97 S Ct 125; 50 L Ed 2d 115 (1976), State v Saxon, 193 Neb. 278; 226 N.W.2d 765 (1975), Jones v Commonwealth, 218 Va. 18; 235 S.E.2d 313 (1977).
It is the last protection — that against multiple punishment — with which we are here concerned.
My research has revealed that much of the discussion of the constitutional prohibition on multiple punishment fails to satisfactorily explicate the underpinnings of that protection. See Note: Twice in Jeopardy, 75 Yale L J 262 (1965). The courts have failed to address the vital question: why is it wrong to cumulate punishment? Id. at 301.
Part of the problem is that courts have seized upon the United States Supreme Court's language in cases not involving the instant issue. For example, the dissent quotes Simpson v United States, 435 U.S. 6; 98 S Ct 909; 55 L Ed 2d 70 (1978), which simply declined to reach a double punishment issue where it found that Congress did not intend separate punishment for a single transaction, for the proposition that Blockburger v United States, 284 U.S. 299; 52 S Ct 180; 76 L Ed 306 (1932), applies even where Congress clearly intended cumulative punishment. I find the dicta in Simpson unpersuasive authority for that proposition.
The protection against multiple punishment is a restraint on courts and prosecutors. Brown v Ohio, 432 U.S. 161; 97 S Ct 2221; 53 L Ed 2d 187 (1977). Note, supra, at 304-308. This is because the Legislature is the proper institution to define offenses and provide for their punishment. The Legislature often provides for different statutory offenses which could apply to the same act. In such a case, the prohibition on multiple punishment prevents courts from cumulating punishment where it appears that the Legislature did not intend that the defendant be cumulatively punished. See Gore v United States, 357 U.S. 386; 78 S Ct 1280; 2 L Ed 2d 1405 (1958). As an aid to ascertaining the Legislature's intent, courts have applied certain rules of construction. For example, it is presumed that the Legislature did not intend to punish cumulatively a greater and necessarily included offense. Kirchheimer, The Act, the Offense and Double Jeopardy, 58 Yale LJ 513 (1949); Note, supra, at 318-319. In short, a "rule of lenity" prohibits multiple punishment where the legislative intent is unclear or doubtful. See People v Nelson, 79 Mich. App. 303; 261 N.W.2d 299 (1977).
"[T]he Fifth Amendment double jeopardy guarantee serves principally as a restraint on courts and prosecutors. The legislature remains free under the Double Jeopardy Clause to define crimes and fix punishments; but once the legislature has acted courts may not impose more than one punishment for the same offense and prosecutors ordinarily may not attempt to secure that punishment in more than one trial." Brown v Ohio, 432 U.S. 161, 165; 97 S Ct 2221, 2225; 53 L Ed 2d 187, 193-194 (1977).
Where the legislative intent regarding punishment is clear, however, there is no multiple punishment problem. Cf. People v Nelson, supra. The danger against which the constitutional prohibition is directed is not present; the court is not multiplying punishment.
In the case at bar, the Legislature has provided, in clear and unmistakable terms, for two convictions and a minimum two-year sentence where a person commits or attempts to commit a felony while in possession of a firearm. Because the legislative intent is clear, there can be no multiple punishment problem; there is no possibility of the court cumulating punishment. Vacating a conviction in this case would undermine the acknowledged function of the Legislature: to define and set the punishment for offenses. It cannot be contended that an individual needs constitutional double jeopardy protection against the Legislature's clear exercise of its proper penological function.
The constitutional prohibition on cruel and unusual punishment, US Const, Am VIII, and the due process guarantee, US Const, Am V, and their state constitutional counterparts, provide adequate restraints on the Legislature's exercise of its power to define offenses and prescribe punishments.
I also note that, under the dissent's analysis, a sentence enhancement statute which did not provide for a second conviction would pose no double jeopardy problem.
This is not, as the dissent asserts, a case of the court abdicating its proper constitutional function. Rather, the problem is one of defining the constitutional protection against multiple punishment. I believe that protection only prevents the courts and prosecutors from multiplying punishment absent a clear legislative directive prescribing punishment. Where the statutory scheme evidences a clear legislative intent that a defendant be punished under separate statutes, there is no multiple punishment problem. Thus, it is illogical to speak of the court abandoning its function by deferring to the Legislature where the Legislature's intent is manifest.
Thus, I agree that both convictions should be affirmed in the case at bar.
I also believe that two aspects of the dissent deserve comment.
First, the dissent, applying the Blockburger test, finds that armed robbery and felony-firearm are the "same offense". I disagree.
Blockburger v United States, 284 U.S. 299; 52 S Ct 180; 76 L Ed 306 (1932).
Under Blockburger, two statutory provisions define different offenses if: "each statute requires proof of an additional fact which the other does not". 284 US at 304 (emphasis added). Clearly, felony-firearm requires proof of a fact not required to convict of armed robbery: possession of a firearm. Armed robbery also requires the proof of facts not required for conviction of felony-firearm, e.g., a robbery. A robbery need not be proved to establish a felony-firearm violation; any felony will suffice. Therefore, I would find that armed robbery and felony-firearm are not the "same offense" under Federal constitutional law.
The Michigan Supreme Court, in People v Stewart (On Rehearing), 400 Mich. 540; 256 N.W.2d 31 (1977), and People v Martin, 398 Mich. 303; 247 N.W.2d 303 (1976), held that a defendant may not be convicted of two crimes where, on the facts of the particular case, the trier of fact must necessarily find him guilty of one in order to find him guilty of the other. People v Terry Alexander, 82 Mich. App. 621; 267 N.W.2d 466 (1978). However, those cases were decided in the context of convictions for possession and sale or delivery of heroin. As there was no contention that the Legislature intended two convictions for these offenses, the Court's omission of reference to legislative intent is understandable. Martin and Stewart thus apply to cases in which there is no express legislative intent to allow multiple conviction. Those cases do not apply to the case at bar, where that intent is explicit.
Second, the dissent hints that Michigan courts interpret the Michigan constitutional protection against multiple punishment more restrictively than its substantially similar Federal counterpart. I agree that Martin and Stewart appear to go beyond the Blockburger rule. However, where the intent of the Legislature is clear, I can ascertain no identifiable state policy mandating a more restrictive interpretation of the double jeopardy clause.
I must dissent from the majority holding that the application of the felony-firearm statute, MCL 750.227b; MSA 28.424(2), in this case does not violate the double jeopardy clauses of the United States and Michigan Constitutions.
The pertinent statutory provision is as follows:
"Sec. 227b. (1) A person who carries or has in his possession a firearm at the time he commits or attempts to commit a felony, except the violation of section 227 or section 227a, is guilty of a felony, and shall be imprisoned for 2 years. Upon a second conviction under this section, the person shall be imprisoned for 5 years. Upon a third or subsequent conviction under this section, the person shall be imprisoned for 10 years.
MCL 750.227, 750.227a; MSA 28.424, 28.424(1).
"(2) The term of imprisonment prescribed by this section shall be in addition to the sentence imposed for the conviction of the felony or the attempt to commit the felony, and shall be served consecutively with and preceding any term of imprisonment imposed for the conviction of the felony or attempt to commit the felony.
"(3) The term of imprisonment imposed under this section shall not be suspended. The person subject to the sentence mandated by this section shall not be eligible for parole or probation during the mandatory term imposed pursuant to subsection (1)." (Footnote added.)
In order to convict a defendant under this statute, it must first be demonstrated that he committed or attempted to commit a felony. By definition that felony is a lesser included offense of the felony-firearm violation because it is impossible to commit the latter without committing the former. People v Ora Jones, 395 Mich. 379; 236 N.W.2d 461 (1975). That much apparently is conceded by the majority opinion. For the reasons hereinafter stated I would hold that it inescapably follows that conviction and sentencing for both the felony-firearm violation and for the underlying felony is precluded by the double jeopardy provisions of both the Federal and the Michigan Constitutions.
I.
Analysis of this issue requires a two-step inquiry. We must first determine whether the Legislature intended cumulative conviction and punishment under both statutory provisions. It is only if this preliminary inquiry is answered in the affirmative that we need consider whether effectuation of that intent violates the constitutional prohibition against multiple punishment for the "same offense". Simpson v United States, 435 U.S. 6; 98 S Ct 909; 55 L Ed 2d 70 (1978). In this case an affirmative answer to the first question is clear on the face of the felony-firearm statute. We must, therefore, determine the constitutional propriety of the Legislature's intended result.
The Federal constitution provides in pertinent part:
"* * * [N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb * * *" US Const, Am V.
That provision protects against multiple punishment for the same offense. Simpson, supra, Jeffers v United States, 432 U.S. 137; 97 S Ct 2207; 53 L Ed 2d 168 (1977), North Carolina v Pearce, 395 U.S. 711; 89 S Ct 2072; 23 L Ed 2d 656 (1969).
The test for determining whether two separately defined crimes constitute the "same offense" is the so-called Blockburger test. Simpson, supra, Brown v Ohio, 432 U.S. 161; 97 S Ct 2221; 53 L Ed 2d 187 (1977).
"The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not." Blockburger v United States, 284 U.S. 299, 304; 52 S Ct 180, 182; 76 L Ed 306, 309 (1932). (Emphasis added.)
This test emphasizes the elements of the two crimes. Brown, supra. Unless the statutes involved satisfy that test the double jeopardy clause of the United States Constitution forbids cumulative punishment. Simpson, supra, Brown, supra. The Blockburger test has in fact been applied by courts squarely confronting the double jeopardy implications of statutes similar to the one before us. Kowalski v Parratt, 533 F. Supp. 1071 (CA 8, 1976), cert den 429 U.S. 844; 97 S Ct 125; 50 L Ed 2d 115 (1976), State v Saxon, 193 Neb. 278; 226 N.W.2d 765 (1975), Jones v Commonwealth, 218 Va. 18; 235 S.E.2d 313 (1977).
"If two offenses are the same under this test for purposes of barring consecutive sentences at a single trial, they necessarily will be the same for purposes of barring successive prosecutions. See In re Nielsen, 131 U.S. 176, 187-188, 9 S Ct 672, 675-676, 33 L Ed 118 (1889); cf. Gavieres v United States, 220 U.S. 338, 31 S Ct 421, 55 L Ed 489 (1911). Where the judge is forbidden to impose cumulative punishment for two crimes at the end of a single proceeding, the prosecutor is forbidden to strive for the same result in successive proceedings. Unless `each statute requires proof of an additional fact which the other does not,' Morey v Commonwealth, 108 Mass. 433, 434 (1871), the Double Jeopardy Clause prohibits successive prosecutions as well as cumulative punishment." Brown v Ohio, 432 U.S. 161, 166; 97 S Ct 2221, 2225-2226; 53 L Ed 2d 187, 194-195 (1977).
Although the courts in Jones and Saxon were analytically correct in their approach, they reached erroneous conclusions due to their misstatement of the Blockburger rule as requiring merely that one offense require proof of a fact which the other does not.
The Kowalski decision was premised upon a finding that robbery was not a lesser included offense of using a firearm in the commission of a robbery. Besides being logically suspect, that determination is no longer good law (if ever it was) in view of the United States Supreme Court's subsequent definition of lesser included offenses for double jeopardy purposes:
"Here the Ohio Court of Appeals has authoritatively defined the elements of the two Ohio crimes: joyriding consists of taking or operating a vehicle without the owner's consent, and auto theft consists of joyriding with the intent permanently to deprive the owner of possession. App. 22. Joyriding is the lesser included offense. The prosecutor who has established joyriding need only prove the requisite intent in order to establish auto theft; the prosecutor who has established auto theft necessarily has established joyriding as well.
"Applying the Blockburger test, we agree with the Ohio Court of Appeals that joyriding and auto theft, as defined by the court, constitute `the same statutory offense' within the meaning of the Double Jeopardy Clause. App. 23. For it is clearly not the case that `each statute requires proof of an additional fact which the other does not'. 284 US, at 304, 52 S Ct, at 182. As is invariably true of a greater and lesser included offense, the lesser offense — joyriding — requires no proof beyond that which is required for conviction of the greater — auto theft. The greater offense is therefore by definition the `same' for purposes of double jeopardy as any lesser offense included in it.
"This conclusion merely restates what has been this Court's understanding of the Double Jeopardy Clause at least since In re Nielsen was decided in 1889. In that case the Court endorsed the rule that
"`where * * * a person has been tried and convicted for a crime which has various incidents included in it, he cannot be a second time tried for one of those incidents without being twice put in jeopardy for the same offense.' 131 US, at 188; 9 S Ct, at 676; 33 L Ed at 118." Brown v Ohio, 432 U.S. 161, 167-168; 97 S Ct 2221, 2226; 53 L Ed 2d 187, 195-196. See also Harris v Oklahoma, 433 U.S. 682; 97 S Ct 2912; 53 L Ed 2d 1054 (1977).
Applying Blockburger to the statutes before us I would conclude that the felony-firearm violation and the armed robbery upon which it was premised do not constitute "separate offenses". Conviction for the armed robbery does not require proof of any facts unnecessary to the felony-firearm conviction because every element of the crime of armed robbery (or whatever felony applies in a given case) must also be proven to establish violation of the felony-firearm statute. Accordingly, I would hold that the cumulative punishment imposed by the statute violates the Federal constitutional prohibition against cumulative punishment for the "same offense".
I must strongly disagree with the majority's statement that the constitutionally guaranteed protection against double jeopardy "ultimately turns upon whether the Legislature intended a particular act to be punished by only one or more statutes". (Emphasis added.)
First of all, to assert that the constitutionality of an act of the Legislature is to be determined by reference to the Legislature's intent in enacting it, is to assert that the Legislature may limit the operation of the constitution. Certainly one of the most fundamental principles of constitutional government is that the constitution limits the power of the Legislature and not vice versa as the majority would seem to hold.
Secondly, United States Supreme Court decisions do not support the majority's position. The pertinent case law stands for the proposition that legislative intent is considered in order to avoid, if possible, the constitutional issue, not to resolve it. The first question is always whether the Legislature intended the involved statutes to operate cumulatively. But that is the beginning of the inquiry, not the end of it. If cumulative application was intended, the statutes must be examined in order to determine whether they define the "same offense" within the meaning of the constitutional prohibition. Explication of this two step analysis was set forth in a recent case:
"In Blockburger v United States, 284 U.S. 299, 76 L Ed 306, 52 S Ct 180 (1932), this Court set out the test for determining `whether two offenses are sufficiently distinguishable to permit the imposition of cumulative punishment.' Brown v Ohio, 432 U.S. 161, 166, 53 L Ed 2d 187, 97 S Ct 2221 (1977). We held that `[t]he applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.' Blockburger v United States, supra, at 304, 76 L Ed 306, 52 S Ct 180. See also Brown v Ohio, supra, at 166, 53 L Ed 2d 187, 97 S Ct 2221; Ianelli v United States, 420 U.S. 770, 43 L Ed 2d 616, 95 S Ct 1284 (1975); Gore v United States, 357 U.S. 386, 2 L Ed 2d 1405, 78 S Ct 1280 (1958). The Blockburger test has its primary relevance in the double jeopardy context, where it is a guide for determining when two separately defined crimes constitute the `same offense' for double jeopardy purposes. Brown v Ohio, supra.
"Cases in which the Government is able to prove violations of two separate criminal statutes with precisely the same factual showing, as here, raise the prospect of double jeopardy and the possible need to evaluate the statutes in light of the Blockburger test. That test, the Government argues, is satisfied in these cases. We need not reach the issue. Before an examination is made to determine whether cumulative punishments for the two offenses are constitutionally permissible, it is necessary, following our practice of avoiding constitutional decisions where possible, to determine whether Congress intended to subject the defendant to multiple penalties for the single criminal transaction in which he engaged. Jeffers v United States, 432 U.S. 137, 155, 53 L Ed 2d 168, 97 S Ct 2207 (1977)." Simpson v United States, 435 U.S. 6, 11-12; 98 S Ct 909, 912-913; 55 L Ed 2d 70, 75-76. (Emphasis added.) (Footnotes omitted.)
The majority's constitutional analysis, therefore, is, in my judgment, devoid of any logical or legal support.
Both the majority in the instant case and the panel in People v Nelson, 79 Mich. App. 303; 261 N.W.2d 299 (1977), misconstrue Justice Warren's lone dissent in Gore v United States, 357 U.S. 386; 78 S Ct 1280; 2 L Ed 2d 1405 (1958), as supporting their position. In citing the Chief Justice's opinion out of context, my brethren have overlooked two salient features of the Gore decision.
The first is that Justice Warren found that the legislative intent in enacting the statutes in question was not to authorize cumulative punishment under them. Having reached that conclusion, there was no need for him to go further and consider the constitutional question.
Second, the majority opinion which did address the constitutional issue, stated that Blockburger was the proper test to determine whether the involved statutes defined "separate offenses" as opposed to "merely different descriptions of the same offense". The other dissenting opinions also reasoned from that premise.
II.
The Michigan Constitution provides in pertinent part:
"No person shall be subject for the same offense to be twice put in jeopardy." Const 1963, art 1, § 15.
That provision, like its Federal counterpart, protects against multiple punishment for the "same offense". People v Stewart (On Rehearing), 400 Mich. 540; 256 N.W.2d 31 (1977), People v Martin, 398 Mich. 303; 247 N.W.2d 303 (1976).
Although the Michigan double jeopardy clause is substantially identical to the double jeopardy clause of the United States Constitution in terms of the interests thereunder protected, in application, the Michigan Supreme Court has not hesitated to adopt more protective standards than those compelled by the Federal constitution. Compare People v White, 390 Mich. 245; 212 N.W.2d 222 (1973) and People v Cooper, 398 Mich. 450; 247 N.W.2d 866 (1976) with Brown v Ohio, 432 U.S. 161; 97 S Ct 2221; 53 L Ed 2d 187 (1977) and Abbate v United States, 359 U.S. 187; 79 S Ct 666; 3 L Ed 2d 729 (1959). Similarly, our Supreme Court recently has made it clear that where a defendant is convicted of two offenses, one of which is included in the other, the double jeopardy clause prohibits not only cumulative punishment but also conviction for both offenses.
"A defendant may be charged and tried for each act that constitutes a separate crime. However, when tried for an act which includes lesser offenses, if the jury finds guilt of the greater, the defendant may not also be convicted separately of the lesser included offense. The prohibition against multiple punishment for the same crime cannot be avoided by the form of the charge." People v Martin, supra, at 309. (Emphasis added.)
In both Stewart and Martin the Supreme Court vacated convictions for lesser included offenses holding that they violated the double jeopardy prohibition against multiple punishment.
For purposes of the instant case it need not be decided whether Stewart and Martin extend the definition of included offenses to include those factually, although not legally, necessarily included in a greater charge. Compare People v Terry Alexander, 82 Mich. App. 621; 267 N.W.2d 466 (1978), with People v Risher, 78 Mich. App. 431; 260 N.W.2d 121 (1977). As I read Stewart and Martin, those cases at a minimum preclude conviction for both a greater offense and one legally necessarily included under People v Ora Jones, supra. See People v Wilder, 82 Mich. App. 358; 266 N.W.2d 847 (1978). Insofar as the underlying felony is necessarily included in the felony-firearm violation, I would hold that under the decisions of the Michigan Supreme Court, the double jeopardy clause of the Michigan Constitution prohibits conviction for both armed robbery and possession of a firearm in the course of that robbery. Because it is clear that the factual basis established the defendant's guilt of both offenses I would vacate the conviction for the felony-firearm violation and the sentence therefor imposed. See, People v Stewart, supra, at 550, n 2.
It is no answer to say, as do my brothers, that no constitutional infirmity exists because the Legislature could have achieved its purpose via a pure sentence enhancement statute. Their argument is erroneous in that it assumes that there would be no difference between the instant statute and the one that they propose. That assumption is factually incorrect and legally invalid.
It is factually incorrect because there are collateral consequences that attach to a separate felony conviction which do not exist with mere sentence enhancement: for example, parole consideration, impeachment at subsequent trials, and habitual offender treatment. Stewart, supra; Martin, supra. It is legally invalid because our Supreme Court has recognized that "even the entry of judgment and the imposition of a suspended sentence of imprisonment is additional punishment". Martin, supra, at 311.
Furthermore, I believe that the proposition that arguably unconstitutional legislation should be given effect where its purpose could be attained in a constitutional manner to be a dangerous and unprecedented abdication of the function of judicial review.
I would affirm in part, and reverse in part.