Opinion
Docket No. 78-1076.
Decided January 17, 1979. Leave to appeal applied for.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward R. Wilson, Principal Attorney, Appeals, and Robert A. Reuther, Assistant Prosecuting Attorney, for the people.
Townsend, Haley Overton, for defendant on appeal.
Defendant was arrested for possession of heroin as he walked down the steps of a hotel. When he saw the police he attempted to discard the heroin. He also tried to get rid of a gun which he had concealed under his coat. Following a plea of guilty to a charge of possession of heroin, MCL 335.341; MSA 18.1070(41), and possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2), he was sentenced to two years probation on the possession of heroin conviction and two years in prison on the felony-firearm conviction, and appeals of right.
On appeal, defendant raises an issue of apparent first impression. He argues that the felony-firearm statute is designed to be applied only to crimes which endanger people where a firearm is often used in their commission. Since possession of heroin does not endanger people or require the use of a weapon, defendant contends that the felony-firearm statute should not be applied to him.
The wording of the statute belies defendant's contention. MCL 750.227b; MSA 28.424(2) creates a felony and provides for punishment where a person "carries or has in his possession a firearm at the time he commits or attempts to commit a felony". The statute does not require use of a weapon, only possession, and defendant did have a firearm in his possession when he committed the felony of possession of heroin. The statute further provides an exception to the crime when the underlying felony is carrying a concealed weapon or possession of a pistol outside the scope of a license. Hence, the Legislature considered exceptions to the statute, and decided not to limit the statute only to crimes where people generally are endangered by the use of a weapon, as defendant suggests. This panel unanimously holds that defendant's conduct falls within the ambit of the statute.
Prior panels of this Court have divided almost evenly on the question of whether the felony-firearm statute is violative of the constitutional protection against double jeopardy. The members of this panel also divide on this question which, though not raised in defendant's brief, we feel in fairness should be raised by this Court. No useful purpose is served by restating at length the rationale of the conflicting opinions. Instead, two members of this panel incorporate by reference the majority opinion in Wayne County Prosecutor v Recorders Court Judge, supra, and People v Berry, supra, and the majority opinion of this panel in People v Harris, post, 88 Mich. App. 280; 276 N.W.2d 582 (1978). Those opinions hold that the underlying felony is a necessarily included offense of the felony-firearm charge and, as such, punishment for both offenses is violative of the constitutional prohibition of double jeopardy. Under those decisions the conviction for the underlying felony (possession of heroin in the case before us) was affirmed and the conviction under the felony-firearm statute was vacated.
On September 20, 1978, the Court of Appeals released six opinions dealing with the question of whether the additional crime of felony-firearm over an underlying felony containing the use of a firearm constitutes double jeopardy. Three opinions found double jeopardy. Wayne County Prosecutor v Recorder's Court Judge, 85 Mich. App. 727; 272 N.W.2d 587 (1978), People v Brintley, 85 Mich. App. 714; 272 N.W.2d 582 (1978), People v Berry, 85 Mich. App. 764; 272 N.W.2d 604 (1978). Four opinions found the statute nonviolative of the constitutional prohibition against double jeopardy. People v Walter Johnson, 85 Mich. App. 654; 272 N.W.2d 605 (1978), People v Gary Hughes, 85 Mich. App. 674; 272 N.W.2d 567 (1978), People v Mitchell, 85 Mich. App. 757; 272 N.W.2d 601 (1978), People v McDowell, 85 Mich. App. 697; 272 N.W.2d 576 (1978). On September 21, 1978, Chief Judge DANHOF advised the Supreme Court of the split and requested that leave be granted and the issue decided. People v Blount, 87 Mich. App. 501; 275 N.W.2d 21 (1978), follows the McDowell-type rationale and upholds the sentence.
Accordingly, in the case before us defendant's conviction and sentence to two years in prison for felony-firearm are vacated and the conviction and sentence for possession of heroin are affirmed.
I agree with the majority that the felony-firearm statute applies in the present case even though the 20-gauge shotgun was not used in the possession of heroin offense. I disagree that double jeopardy attaches. In support of my dissent I adopt by reference the majority opinion in People v McDowell, 85 Mich. App. 697; 272 N.W.2d 576 (1978), and in People v Burton, 87 Mich. App. 598; 274 N.W.2d 849 (1978).
Under those opinions, that part of the felony-firearm statute which creates a separate offense is found inoperable and with the offending language thus removed, the statute is construed to be a minimum sentencing statute setting forth a mandatory minimum term of incarceration for the underlying felony. In the case before us the underlying felony is possession of heroin for which defendant was given two years probation. Under the felony-firearm statute the minimum mandatory sentence would be two years in prison. I would affirm defendant's conviction and sentence in full.