People v. Bennett, Docket No. 22861

• Decision Date: 08 September 1976
• Docket Number: Docket No. 22861
• Citation: 247 N.W.2d 368,71 Mich.App. 246
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Marshall Lee BENNETT, Jr., Defendant-Appellant. 71 Mich.App. 246, 247 N.W.2d 368
• Court: Court of Appeal of Michigan — District of US

Page 368

247 N.W.2d 368

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Marshall Lee BENNETT, Jr., Defendant-Appellant.

Docket No. 22861

71 Mich.App. 246, 247 N.W.2d 368

Court of Appeals of Michigan.

Sept. 8, 1976.

Released for Publication Dec. 14, 1976.

[71 MICHAPP 247] James R. Neuhard, State Appellate Defender, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Eugene C. Penzien, Pros. Atty., for plaintiff-appellee.

Before KELLY, P.J., and BRONSON and PETERSON, JJ.

PER CURIAM.

Defendant was found guilty by a jury of one count of delivery of marijuana, two counts of possession with intent to deliver marijuana, all contrary to M.C.L.A. § 335.341; M.S.A. § 18.1070(41), carrying a concealed weapon, contrary to M.C.L.A. § 750.227; M.S.A. § 28.424, and carrying a firearm with unlawful intent, contrary to M.C.L.A. § 750.226; M.S.A. § 28.423. Defendant was sentenced to the appropriate statutory maximums, with concurrent one-year minimum sentences on all counts. He appeals by right.

Defendant raises only one issue which merits discussion. He contends that he was improperly convicted and sentenced on one of the counts of possession with intent to deliver marijuana along with the count of delivery of marijuana because both arose from the same factual occurrence. We agree that defendant was thereby punished twice [71 MICHAPP 248] for the same act, and we vacate his conviction and sentence on the possession charge.

We do not accept defendant's argument that his double jeopardy rights were violated here. In Holiday v. Johnston, 313 U.S. 342, 61 S.Ct. 1015, 85 L.Ed. 1392 (1941), the Court held that a habeas corpus petitioner had been improperly convicted of violating two criminal statutes after committing an offense which Congress intended to punish but once. Yet the Court emphasized that they were not considering a constitutional complaint:

'The erroneous imposition of two sentences for a single offense of which the accused has been convicted, or as to which he has pleaded guilty, does not constitute double jeopardy.' 313 U.S., at 349, 61 S.Ct. at 1017.

In Gore v. United States, 357 U.S. 386, 392--393, 78 S.Ct. 1280, 1284--1285, 2 L.Ed.2d 1405, 1410--1411 (1958), Justice Frankfurter pointed out that there are no constitutional restraints upon the fragmentation of crimes for punishment purposes. See, also Wright v. United States, 519 F.2d 13, 16 (C.A.7, 1975). ¹

Although the Legislature may constitutionally impose dual punishment for a single criminal act, it must clearly appear from the face of the statute and its legislative history that the Legislature intended to do so. See, for example, the analysis of the Federal Bank Robbery Act, 18 U.S.C. 2113, in Prince v. United States, 352 U.S. 322, 77 S.Ct. 403, 1 L.Ed.2d 370 (1957); Heflin v. United States, 358 U.S. 415, 79 S.Ct. 451, 3 L.Ed.2d 407 (1959); United [71 MICHAPP 249] States v. Gaddis, 424 U.S. 544, 96 S.Ct. 1023, 47 L.Ed.2d 222 (1976). In the absence of legislative history, any ambiguity in the statutory scheme should be resolved in favor of lenity. Bell v. United States, 349 U.S. 81, 83--84, 75 S.Ct. 620, 622, 99 L.Ed. 905, 910--911 (1955); Heflin v. United States, supra.

The relevant language of the statute under which defendant was convicted provides that 'it is unlawful for any person to manufacture, deliver or possess with intent to * * * deliver, a controlled substance'. Counts I and II charged this defendant with delivering and possessing with intent to deliver the same marijuana. On these facts, we think that the rule of lenity requires us to hold that the Legislature intended that the factfinder elect between a conviction for delivery and one for possession with intent to deliver. That result has been reached under the federal narcotics statute, 21 U.S.C. § 841 Et eq., for 'distribution' and 'possession with intent to distribute'. We think what was said in United States v. Curry, 512 F.2d 1299, 1306 (C.A.4, 1975), is applicable here:

'In the instant case the evidence of the sale was relied upon to prove Curry's 'intent to distribute' at the time of his possession. The gravamen of each offense is the distribution of a controlled substance: when the intent is carried out by a successful sale the offenses merge. To paraphrase the language of the Supreme Court on a similar point, we hold, therefore, that when Congress made either distribution or possession with intent to distribute a crime it intended that the maximum punishment for distribution should remain at fifteen years but, even if the culprit should fall short of accomplishing his purpose, he could be imprisoned for fifteen...