People v. Berry
| Decision Date | 20 September 1978 |
| Docket Number | Docket No. 77-4728 |
| Citation | 272 N.W.2d 604,85 Mich.App. 764 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Tommy BERRY, Defendant-Appellant. 85 Mich.App. 764, 272 N.W.2d 604 |
| Court | Court of Appeal of Michigan — District of US |
[85 MICHAPP 766] William A. House, Detroit, for defendant-appellant.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Edward R. Wilson, Appellate Chief Asst. Pros. Atty., for plaintiff-appellee.
Before KAUFMAN, P. J., and MAHER and RILEY, JJ.
Defendant pled guilty to robbery armed, M.C.L. § 750.529; M.S.A. § 28.797, and possession of a firearm in the commission of a felony, M.C.L. § 750.227b; M.S.A. § 28.424(2).
Defendant contends that the trial court erred in denying defendant's motion to withdraw his plea because there was an inadequate factual basis. We find that the proper factual basis was established and that the trial court did not err.
However, we do not believe defendant's conviction under the felony-firearm statute is constitutionally valid. See Wayne County Prosecutor v. Recorder's Court Judge, 85 Mich.App. 727, 272 N.W.2d 587 (1978); People v. Mitchell, 85 Mich.App. 757, 272 N.W.2d 601 (1978) (N. J. Kaufman, J., dissenting); People v. Hughes, 85 Mich.App. 674, 272 N.W.2d 567 (1978) (D. F. Walsh, J., dissenting). Though we find the robbery armed charge a necessarily included offense of the felony-firearm charge, we choose to vacate the conviction under the felony-firearm statute and affirm the robbery armed conviction. Wayne County Prosecutor v. Recorder's Court Judge, supra.
Affirmed in part; reversed in part.
I concur separately for the reasons stated in my dissenting [85 MICHAPP 767] opinions in People v. Johnson, 85 Mich.App. 605, 272 N.W.2d 605 (1978); People v. Mitchell, 85 Mich.App. 757, 272 N.W.2d 601 (1978), and People v. Johnson, 85 Mich.App. 752, 272 N.W.2d 599 (1978).
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People v. Burton
...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. John......
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People v. McGore
...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 and Buchanan, 88 Mich.App. 280, 276 N.W.2d 582 (1978). Those opinions hold t......
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People v. Berry
...the Court, pursuant to GCR 1963, 853.2(4), in lieu of leave to appeal, reverses that portion of the Court of Appeals judgment 85 Mich.App. 764, 272 N.W.2d 604 which set aside the defendant's felony-firearm conviction and reinstates the conviction and sentence for possession of a firearm in ......
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People v. Chamblis
...and the underlying felony is in all cases a violation of the constitutional provision against double jeopardy, People v. Berry, 85 Mich.App. 764, 272 N.W.2d 604 (1978), Wayne County Prosecutor v. Recorder's Court Judge, 85 Mich.App. 727, 272 N.W.2d 587 ...