People v. Brintley, Docket Nos. 77-2756

• Court: Court of Appeal of Michigan (US)
• Writing for the Court: D. E. HOLBROOK, Jr.
• Citation: 272 N.W.2d 582,85 Mich.App. 714
• Docket Number: Docket Nos. 77-2756,77-3404
• Decision Date: 20 September 1978
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Curtis BRINTLEY, Carlos Robinson, Defendants-Appellants. 85 Mich.App. 714, 272 N.W.2d 582

Page 582

272 N.W.2d 582 PEOPLE of the State of Michigan, Plaintiff-Appellee,
v.
Curtis BRINTLEY, Carlos Robinson, Defendants-Appellants. Docket Nos. 77-2756, 77-3404. 85 Mich.App. 714, 272 N.W.2d 582 Court of Appeals of Michigan. Sept. 20, 1978.
Released for Publication Dec. 18, 1978.

Page 583

[85 MICHAPP 716] Arthur H. Landau, Detroit, for Brintley.

Seymour Weberman, Southfield, for Robinson.

[85 MICHAPP 715] Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Edward R. Wilson, App. Chief Asst. Pros. Atty., Robert Reuther, Asst. Pros. Atty., for plaintiff-appellee.

[85 MICHAPP 716] Before D. E. HOLBROOK, Jr., P. J., and T. M. BURNS and VanVALKENBURG, ^* JJ.

D. E. HOLBROOK, Jr., Presiding Judge.

Defendants were charged in a complaint and warrant with two counts: armed robbery contrary to M.C.L. § 750.529; M.S.A. § 28.797, and possession of a firearm during the commission of a felony, M.C.L. § 750.227b; M.S.A. § 28.424(2). Following a trial by the court, without a jury, the trial judge made findings of fact and conclusions of law among which is the following:

"I find, as a fact, beyond a reasonable doubt, that both defendants are guilty of Count I, robbery armed. I find, as a fact, that the instrumentality used in the robbery armed was a gun and that the defendant, Curtis Brintley, possessed the gun doing the commission of a felony which is in violation of Statute 750.227b.

"I'm of the opinion that that felony cannot be committed vicariously. Therefore I find the defendant, Carlos Robinson, not guilty of that. That is say, it can't be committed constructively. I therefore find the defendant, Curtis Brintley, guilty of Counts I and II. I find the defendant, Carlos Robinson, guilty of Count I, only."

Thereafter the trial court sentenced defendant Brintley to a prison term of 5 to 10 years on the armed robbery charge and to a prison term of 2 to 10 years on the felony-firearm charge. Defendant Robinson was sentenced to a prison term of from 1 1/2 to 5 years on the armed robbery charge. Both defendants appeal as of right.

While numerous issues are raised on appeal all [85 MICHAPP 717] but one are lacking in merit. Since the single meritorious issue applies only to defendant Brintley we affirm defendant Robinson's conviction without further discussion.

With respect to defendant Brintley he claims on appeal that the trial court reversibly erred in finding him guilty of both armed robbery and felony-firearm in that such a finding represents an unconstitutional duplication of punishment. We agree.

Among the guarantees encompassed by the double jeopardy clause is protection against multiple punishment for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). It is beyond dispute that a single act may violate more than one criminal statute where this is the clear legislative intent. Blockburger v. United States,284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932); Gore v. United States,357 U.S. 386, 78 S.Ct. 1280, 2 L.Ed.2d 1405 (1958); People v. Bennett, 71 Mich.App. 246, 248, 247 N.W.2d 368 (1976). But where one of two offenses charged is necessarily a lesser included offense of the other, convictions for

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both based on the same act amount to unconstitutional double punishment. People v. Martin, 398 Mich. 303, 247 N.W.2d 303 (1976); People v. Stewart (On Rehearing), 400 Mich. 540, 256 N.W.2d 31 (1977).

Based on the trial court's findings it is apparent that defendant Brintley's act of armed robbery was necessarily a lesser included offense of felony-firearm. A necessarily lesser included offense is an offense such that it is impossible to commit the greater without first having committed the lesser. People v. Patskan, 387 Mich. 701, 713, 199 N.W.2d 458 (1972); People v. Jones, 395 Mich. 379, 387, 236...