People v. Burton

• Decision Date: 08 December 1978
• Docket Number: Docket No. 77-4463
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Edwin Eugene BURTON, Defendant-Appellant. 87 Mich.App. 598, 274 N.W.2d 849
• Court: Court of Appeal of Michigan — District of US

Page 849

274 N.W.2d 849

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Edwin Eugene BURTON, Defendant-Appellant.

Docket No. 77-4463.

87 Mich.App. 598, 274 N.W.2d 849

Court of Appeals of Michigan.

Dec. 8, 1978.

Released for Publication Feb. 9, 1979.

[87 MICHAPP 600] Gibbons & Nye by Charles G. Gibbons, Hillsdale, for defendant-appellant.

[87 MICHAPP 599] Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Ronald C. Zellar, Pros. Atty., Hillsdale, by [87 MICHAPP 600] Thomas C. Nelson Pros. Atty. Appellate Service, Lansing, for plaintiff-appellee.

Before V. J. BRENNAN, P. J., and ALLEN and O'CONNELL, ^* JJ.

PER CURIAM.

Once again this Court is asked to determine whether Michigan's felony-firearm statute M.C.L. § 750.227b; M.S.A. § 28.424(2) is violative of the constitutional protection against double jeopardy. On this issue, prior panels of this Court have divided almost evenly. ¹ This panel holds the statute constitutional.

In a three-count information, defendant was charged with (I) Assault with intent to do great bodily harm less than murder, M.C.L. § 750.84; M.S.A. § 28.279, (II) felonious assault, M.C.L. § 750.82; M.S.A. § 28.277, and (III) possession of a firearm at the time of commission or attempted commission of a felony, M.C.L. § 750.227b; M.S.A. § 28.424(2). Pursuant to a plea agreement, defendant entered pleas of guilty to counts II and III. On September 26, 1977, a [87 MICHAPP 601] hearing was held on defendant's motion to dismiss count III based on alleged constitutional deficiencies of the felony-firearm statute. Following argument, the court denied the motion and sentenced defendant to 32 months to 4 years on count II, said sentence to be served consecutively with the mandatory 2-year term under count III.

We reject defendant's initial argument that the felony-firearm statute is unconstitutional for overbreadth. Clearly, it is not overbroad in relation to defendant's conduct. One may not constitutionally challenge a statute on grounds of overbreadth against him when the statute clearly applies. People v. Chapman, 80 Mich.App. 583, 264 N.W.2d 69 (1978).

On the sensitive question of double jeopardy, strong and persuasive reasons support each of the conflicting conclusions of the several panels which have addressed the issue. No useful purpose is served by detailing at length the arguments offered in support of the conflicting positions of prior panels. Instead, the task of this panel is to briefly state the opposing views and decide which of the two positions most merits support.

The decisions finding double jeopardy do so by reading the statute literally. Literally read, the statute states that an underlying felony must be shown in order to find the separate crime of felony firearm. Consequently, the underlying felony is always a necessarily included offense of the separate offense of felony firearm. People v. Jones, 395 Mich. 379, 236 N.W.2d 461 (1975). But our Supreme Court has held that where one of two offenses charged is a necessarily included offense of the other, convictions for both based on the same act constitutes double punishment. People v. Martin, 398 Mich. 303, 247 N.W.2d 303 (1976), People[87 MICHAPP 602] v. Stewart, (On Remand ), 400 Mich. 540, 256 N.W.2d 31 (1977).

Decisions which find no double jeopardy infirmity do so by ignoring the literal reading of the statute and looking to legislative intent. In these decisions the Court finds that the Legislature intended to augment the sentence where a firearm was carried in the commission of a felony. In effect, the statute becomes a sentence-increasing or sentence-augmenting statute. Since the Legislature could have provided by amendment to the underlying felony statute a minimal punishment where the underlying felony is committed with a firearm and since, under Gore v. United States, 357 U.S. 386, 78 S.Ct. 1280, 2 L.Ed.2d 1405 (1958), such amendment would not offend the double jeopardy clause, there is no double jeopardy impediment where the same result is reached by separate statute. ²

It is the conclusion of this panel that the better reasoning lies with the decisions upholding the statute. The legislative intent is so clear that to us it is absurd, or at least awkward, to place technicalities ahead of intent. As was stated in Williams v. Secretary of State, 338 Mich. 202, 208, 60 N.W.2d 910 (1953), and quoted with approval in McDowell, supra:

" 'Effect to be Given to True Intent of Act. Modification of Language. Where the language of a statute, in its ordinary meaning and grammatical construction, [87 MICHAPP 603] 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 panel adopts by reference the McDowell-Blount, supra, rationale and holds inoperable that portion of the felony-firearm statute which creates a separate offense but sustains the defendant's sentence on grounds that with the offending language removed, the statute sets forth a mandatory minimum term of incarceration on the underlying felony.

Defendant's conviction for felony firearm is set...