People v. Carmouche

• Decision Date: 22 February 1982
• Docket Number: Docket No. 54410
• Citation: 315 N.W.2d 924,112 Mich. App. 325
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Eric CARMOUCHE, Defendant-Appellant. 112 Mich.App. 325, 315 N.W.2d 924
• Court: Court of Appeal of Michigan — District of US

Page 924

315 N.W.2d 924

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Eric CARMOUCHE, Defendant-Appellant.

Docket No. 54410.

112 Mich.App. 325, 315 N.W.2d 924

Court of Appeals of Michigan.

Submitted Nov. 5, 1981.

Decided Jan. 6, 1982.

Released for Publication Feb. 22, 1982.

[112 MICHAPP 326] Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Conrad J. Sindt, Pros. Atty., and Richard A. Pattison, Asst. Pros. Atty., for the People.

Susan J. Smith, Asst. State Appellate Defender, for defendant-appellant.

Before BURNS, P. J., and BASHARA and KNOBLOCK, ^* JJ.

PER CURIAM.

Defendant was convicted by a jury of having committed assault with intent to do great bodily harm less than murder, M.C.L. § 750.84; M.S.A. § 28.279. He was also convicted of possession of a firearm during the commission of a felony, M.C.L. § 750.227b; M.S.A. § 28.424(2). He was sentenced to prison terms of 3 to 10 years for the assault conviction and 2 years for the felony-firearm conviction. These convictions are currently pending on appeal in this Court.

Subsequently, defendant pled guilty to being an [112 MICHAPP 327] habitual offender, second offense, M.C.L. § 769.10; M.S.A. § 28.1082. The sentence imposed for the assault conviction was vacated and defendant was sentenced to 5 to 15 years in prison under the habitual offender statute. The mandatory two-year felony-firearm sentence was not disturbed.

On appeal, defendant asserts that the trial court erred in not setting aside the two-year felony-firearm sentence. Our review of the law leads us to conclude that the trial court did not err in imposing sentences for both the habitual offender and the felony-firearm convictions.

Where a defendant is convicted as being an habitual offender, the trial court may resentence him to greater punishment as detailed in the statute. M.C.L. §§ 769.10, 769.11, 769.12; M.S.A. §§ 28.1082, 28.1083, 28.1084. Upon resentencing, the court is required to "vacate the previous sentence, deducting from the new sentence all time actually served on the vacated sentence if required". M.C.L. § 769.13; M.S.A. § 28.1085.

We do not read the habitual offender statute as requiring that the felony-firearm sentence also be set aside. In enacting the felony-firearm statute, the Legislature intended to create a separate crime distinct from the underlying felony and intended that cumulative punishment should be imposed. Wayne County Prosecutor v. Recorder's Court Judge, 406 Mich. 374, 389, 280 N.W.2d 793 (1979), app.dis. 444 U.S. 948, 100 S.Ct. 418, 62 L.Ed.2d 317 (1979). To hold that the felony-firearm sentence is nullified upon an habitual offender conviction and resentencing on the underlying felony would circumvent the intent of the Legislature in enacting both statutes.

The felony-firearm conviction had no bearing on the habitual offender charge, which was based [112 MICHAPP 328] upon the assault conviction and a 1971 conviction for breaking and entering an unoccupied building with the intent to commit larceny, M.C.L. § 750.110; M.S.A. § 28.305. We find nothing in the felony-firearm and habitual offender statutes mandating that the felony-firearm sentence be vacated.

Defendant seeks resentencing on other grounds. It is alleged that the sentencing judge considered constitutionally infirm juvenile convictions in setting the habitual offender sentence. The prosecution has agreed that remand is necessary in order that a Tucker ¹ hearing may be held on the issue. Accordingly, the matter is remanded for further proceedings as outlined in People v. Moore, 391 Mich. 426, 216 N.W.2d 770 (1974). Also see, People v. Trupiano...