Opinion
Docket No. 60012.
Decided February 8, 1983. Leave to appeal applied for.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Deputy Chief, Civil and Appeals, and Rosemary A. Gordon, Assistant Prosecuting Attorney, for the people.
Rene A. Cooper, for defendant.
Before: BRONSON, P.J., and BEASLEY and CYNAR, JJ.
Defendant pled guilty to charges of armed robbery, MCL 750.529; MSA 28.797, assault with intent to commit murder, MCL 750.83; MSA 28.278, and possession of a firearm during the commission of a felony (the armed robbery), MCL 750.227b; MSA 28.424(2). He appeals as of right.
Defendant's armed robbery conviction must be reversed because the trial judge did not inform him that he could not be placed on probation if he pled guilty to that offense. People v Rogers, 412 Mich. 669; 316 N.W.2d 701 (1982). The people cannot rely on our decision in People v Greene, 116 Mich. App. 205; 323 N.W.2d 337 (1982), rev'd 414 Mich. 896; 323 N.W.2d 4 (1982), which was recently reversed by the Supreme Court.
The people's argument that the decision in Rogers, supra, should not be given retroactive effect does not apply here. Trial courts have been required to comply with GCR 1963, 785.7(1)(f) since its adoption. In Rogers, the Court decided that reversal was the required remedy for violation of GCR 1963, 785.7(1)(f). Because the Supreme Court did not impose on trial courts a new rule of law but merely set forth a new remedial rule to be followed by appellate courts, our application of Rogers to this case is not retroactive.
We need not consider defendant's claim that the trial court erred by failing to inform him of a mandatory minimum sentence for armed robbery.
Defendant, in general, requests that his conviction for felony-firearm, based on the armed robbery, be reversed. He has presented, and we see, no reason why his felony-firearm conviction should be reversed. That plea was properly taken in accordance with the court rules and there is no logical connection between its validity and the defect in the armed robbery plea. The only plausible reason for reversing defendant's felony-firearm conviction is to bring more pressure to bear on prosecutors and trial courts in order to secure compliance with the guilty plea rules. We believe that the remedies now in place are adequate for this purpose.
This would not be true if the defect in the armed robbery plea was the failure properly to elicit a factual basis, where the factual basis was not separately set forth in the felony-firearm plea.
Defendant's armed robbery conviction is reversed; his other convictions are affirmed.
CYNAR, J., concurred.
I respectfully dissent. I agree with the majority in holding that the trial court's failure to advise defendant that the offense of armed robbery is not probationable requires the setting aside of the armed robbery plea. However, I do not agree that defendant's guilty plea to felony-firearm need not be vacated since the guilty plea to that offense was taken in conformity with the court rules.
GCR 1963, 785.7(1)(f); People v Rogers, 412 Mich. 669; 316 N.W.2d 701 (1982); People v Harrison, 117 Mich. App. 472; 324 N.W.2d 57 (1982), lv den 414 Mich. 897 (1982).
The felony-firearm statute provides in pertinent part:
MCL 750.227b; MSA 28.424(2).
"(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.
"(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."
The statute can be applied only to augment or enhance a sentence imposed on the underlying offense. When the Legislature said that the sentence for the felony-firearm conviction "shall be in addition to the sentence imposed for the conviction of the felony or the attempt to commit the felony", it did not intend that a sentence for felony-firearm could be imposed when there was no conviction of the underlying felony or if the conviction of the underlying felony is vacated.
See People v Walter Johnson, 85 Mich. App. 654, 670; 272 N.W.2d 605 (1978), modified on other grounds 411 Mich. 50; 303 N.W.2d 442 (1981).
In People v Lewis, the Supreme Court held that a defendant charged with possession of a firearm during the commission of a felony and an underlying felony need not be convicted of the underlying felony in order that a conviction of the felony-firearm charge may stand. I do not believe that the Lewis decision is applicable where, as here, the convictions were based on guilty pleas and the underlying felony must be vacated because of a defect in the plea-taking procedure of that felony.
People v Lewis, 415 Mich. 443; 330 N.W.2d 16 (1982).
In the within matter, defendant's plea-based conviction of possession of a firearm in the commission of an armed robbery cannot stand unless his plea-based conviction of the underlying felony remains intact. Since felony-firearm is a derivative offense, it cannot stand alone. I would distinguish this case from Lewis, supra: in Lewis, defendant was acquitted by a jury of the underlying felony count; here, defendant's guilty plea to the underlying felony was vacated.
An example of a civil cause of action that is derivative is a spouse's suit for loss of consortium. If the injured spouse does not succeed in her cause of action against the alleged tortfeasor, the husband's action for loss of consortium likewise must fail. See Jones v Slaughter, 54 Mich. App. 120, 124; 220 N.W.2d 63 (1974); Bias v Ausbury, 369 Mich. 378, 381-382; 120 N.W.2d 233 (1963); Anno: Contributory negligence of spouse or child as bar to recovery of collateral damages suffered by other spouse or parent, 21 ALR3d 469, 471.
I would vacate defendant's guilty plea to felony-firearm.