Summary
In People v Shelton, 93 Mich. App. 782; 286 N.W.2d 922 (1979), decided prior to People v Jankowski, supra, it was concluded that a conviction for both felonious assault and carrying a concealed weapon did not violate double jeopardy.
Summary of this case from People v. DavisOpinion
Docket No. 78-4559.
Decided November 20, 1979.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, L. Brooks Patterson, Prosecuting Attorney, Robert C. Williams, Chief Appellate Counsel, and Michael J. Modelski, Assistant Prosecuting Attorney, for the people.
Bolden Blake Professional Corporation (by Elliot D. Margolis), for defendant.
Before: DANHOF, C.J., and N.J. KAUFMAN and D.C. RILEY, JJ.
Defendant was convicted, on his plea of guilty, of felonious assault, MCL 750.82; MSA 28.277, carrying a concealed weapon, MCL 750.227; MSA 28.424, and possession of a firearm during the commission of a felony, MCL 750.227(b); MSA 28.424(2). He now appeals these convictions and the corresponding prison terms imposed.
Defendant asserts two double jeopardy claims on appeal, contending that double sentencing is unconstitutional when imposed for both felonious assault and felony-firearm, and both felonious assault and carrying a concealed weapon. Neither claim is meritorious.
It is well settled that there is no double jeopardy violation for dual punishment if (1) each offense requires proof of a fact that the other does not, People v Davenport, 89 Mich. App. 678; 282 N.W.2d 179 (1979), or, (2) the Legislature expressed a clear intent to define and punish separate offenses based on one incident. Wayne County Prosecutor v Recorder's Court Judge, 406 Mich. 374; 280 N.W.2d 793 (1979). The Supreme Court has recently concluded that the felony-firearm statute does not violate double jeopardy based on the second exception. Wayne County Prosecutor, supra. We are also convinced, based on the first exception, that there is no double jeopardy violation for conviction of felonious assault and carrying a concealed weapon. Carrying a concealed weapon requires proof that an accused carried a weapon and that it was concealed on or about his person. The underlying statute was enacted to discourage quarreling persons from suddenly drawing and using concealed weapons. People v Davenport, supra. Felonious assault, on the other hand, is an assault, a positive act against another person committed with a dangerous weapon. Its purpose is to discourage assaulting persons from inflicting even more serious injuries upon one another. People v Van Diver, 80 Mich. App. 352; 263 N.W.2d 370 (1977). As these crimes require proof of distinct elements and do not overlap in purpose, there is no double jeopardy violation. See People v Burkhart, 38 Mich. App. 44; 195 N.W.2d 794 (1972), People v Hooper, 36 Mich. App. 123; 193 N.W.2d 203 (1971).
Defendant also contends that the felony-firearm act is unconstitutional for failure to comply with art IV, § 25 of the Michigan Constitution requiring republication or reenactment of former laws when they are altered by new ones. This point was addressed by the Court of Appeals in People v Gary Hughes, 85 Mich. App. 674; 272 N.W.2d 567 (1978), wherein it was held that this provision does not apply to amendments by implication, as in the instant case.
Finally, defendant asserts that his sentence was predicated on inaccurate information. We find no evidence in the briefs or record to substantiate this claim. Accordingly, defendant's convictions must be affirmed.
DANHOF, C.J., concurred.
Noting that carrying a concealed weapon, MCL 750.227; MSA 28.424, is specifically excepted under the felony-firearm statute, MCL 750.227(b); MSA 28.424(2), I must disagree with the majority's conclusions. It is true that no double jeopardy problems would arise from convictions of felonious assault, MCL 750.82; MSA 28.277, and carrying a concealed weapon. Similarly, no double jeopardy violation would arise where a defendant is convicted of both felonious assault and felony-firearm. However, this ignores the fatal combination of multiple convictions for carrying a concealed weapon and felony-firearm, a combination expressly precluded under the felony-firearm statute.
"(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.
"(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)."
In view of the foregoing, I would affirm the felonious assault and carrying a concealed weapon convictions, but vacate the felony-firearm conviction.