People v. Blount, Docket No. 78-574

• Citation: 87 Mich.App. 501,275 N.W.2d 21
• Decision Date: 05 December 1978
• Docket Number: Docket No. 78-574
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ronald BLOUNT, Defendant-Appellant. 87 Mich.App. 501, 275 N.W.2d 21
• Court: Court of Appeal of Michigan (US)

Page 21

275 N.W.2d 21

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ronald BLOUNT, Defendant-Appellant.

Docket No. 78-574.

87 Mich.App. 501, 275 N.W.2d 21

Court of Appeals of Michigan.

Dec. 5, 1978.

Released for Publication Feb. 9, 1979.

[87 MICHAPP 503] Robert E. Slameka, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Edward R. Wilson, App. Chief, Asst. Pros. Atty., Robert A. Reuther, Asst. Pros. Atty., for plaintiff-appellee.

Before J. H. GILLIS, P. J., and V. J. BRENNAN and BASHARA, JJ.

V. J. BRENNAN, Judge.

On July 6, 1977, defendant Ronald Blount pled guilty in Recorder's Court to armed robbery, M.C.L. § 750.529; M.S.A. § 28.797, and possession of a firearm in the commission of a felony, to-wit, armed robbery, M.C.L. § 750.227b; M.S.A. § 28.424(2). Defendant was sentenced to 4 to 10 years on the armed robbery and 2 years on the felony firearm, such sentences to be served consecutively.[87 MICHAPP 504] Defendant brings this appeal by right, GCR 1963, 806.1.

Defendant raises four issues on appeal, two of which merit discussion.

Defendant argues that the felony-firearm statute is unconstitutional because it amends a large number of statutes without re-enactment and publication, contrary to Const.1963, art. 4, § 25 which provides:

"No law shall be revised, altered or amended by reference to its title only. The section or sections of the act altered or amended shall be re-enacted and published at length."

The Supreme Court in Advisory Opinion re Constitutionality of 1972 P.A. 294, 389 Mich. 441, 208 N.W.2d 469 (1973), cites with approval the rationale behind the foregoing prohibition as enunciated by Justice Cooley in People v. Mahaney, 13 Mich. 481, 497 (1865), which follows:

"An amendatory act which purported only to insert certain words, or to substitute one phrase for another in an act or section which was only referred to but not republished, was well calculated to mislead the careless as to its effect, and was, perhaps, sometimes drawn in that form for that express purpose. Endless confusion was thus introduced into the law, and the Constitution wisely prohibited such legislation. But an act complete in itself is not within the mischief designed to be remedied by this provision, and cannot be held to be prohibited by it without violating its plain intent."

It is clear that the felony-firearm statute does not fall within "the mischief designed to be remedied by" the constitutional provision. The statute in question is complete within itself, requires reference to no other statute for its meaning, nor [87 MICHAPP 505] does it alter or amend another statute by reference to the other statute's title. Therefore, the felony-firearm statute is not violative of Michigan Const.1963, art. 4, § 25.

The defendant also contends that his convictions and consecutive sentences for armed robbery and felony firearm arising from a single robbery violate constitutional prohibitions against double jeopardy.

Initially we must point out that the guarantee against double jeopardy "protects against multiple punishments for the same offense". North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969), People v. Stewart (On Rehearing), 400 Mich. 540, 256 N.W.2d 31 (1977). Michigan law has construed this protection to prohibit Separate convictions for two offenses arising out of one criminal transaction where one is a necessarily lesser included offense of the other. People v. Stewart, supra, People v. Martin, 398 Mich. 303, 247 N.W.2d 303 (1976).

A literal reading of the felony-firearm statute indicates that the felony must be shown in order to convict on felony firearm. Therefore, the underlying felony is always a necessarily lesser included offense of felony firearm. People v. Ora Jones, 395 Mich. 379, 236 N.W.2d 461 (1975). The logical extension of this literal reading would require vacating the conviction on the lesser charge (felony) and affirming the conviction on the higher charge (felony firearm). See People v. Stewart, supra, 550, n. 2, 256 N.W.2d 31.

Such a result would require an abdication of our duty to interpret statutes concomitant with the applicable underlying legislative intent. The primary rule governing statutory interpretation is to first and foremost ascertain and give effect to the manifest intent of the Legislature. Simpson v. [87 MICHAPP 506] United States, 435 U.S. 6, 98 S.Ct. 909, 55 L.Ed.2d 70 (1978); Gore v. United States, 357 U.S. 386, 78 S.Ct. 1280, 2 L.Ed.2d 1405 (1958).

The underlying legislative intent in regard to the felony firearm statute is to require a mandatory, minimum prison sentence in all felonies and attempted felonies where a firearm was carried or possessed. A review of the legislative history of the enactment indicates that certainty of punishment was the primary concern.

This Court is then faced with the dilemma of applying the literal meaning of the statute to an absurd end or interpreting and thus modifying the statute in light of the accompanying manifest legislative intent.

The propriety of our choosing the latter approach is supported by the Michigan Supreme Court in Williams v. Secretary of State, 338 Mich. 202, 208, 60 N.W.2d 910 (1953), where the following maxim is quoted with approval:

" ' "Where the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship or injustice, presumably not intended, a construction may be put upon it, which modifies the meaning of the words, and even the structure of the sentence. This is done, sometimes, by giving an unusual meaning to particular words; Sometimes by altering their collocation; or by rejecting them altogether; or...