People v. Ferrell
| Decision Date | 27 August 1980 |
| Docket Number | Docket No. 45642 |
| Citation | 299 N.W.2d 366,99 Mich.App. 609 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Gerald FERRELL, Defendant-Appellant. 99 Mich.App. 609, 299 N.W.2d 366 |
| Court | Court of Appeal of Michigan — District of US |
[99 MICHAPP 610] Elliot D. Margolis, Detroit, for defendant-appellant.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., E. Reilly Wilson, App. Chief Asst. Pros. Atty., Diane Odrobina, Asst. Pros. Atty., for plaintiff-appellee.
Before BASHARA, P. J., and RILEY and QUINNELL, * JJ.
Defendant was convicted by a jury of first-degree criminal sexual conduct, M.C.L. § 750.520b; M.S.A. § 28.788(2), and unarmed robbery, M.C.L. § 750.530; M.S.A. § 28.798. He was sentenced to concurrent terms of 5 to 15 years imprisonment.
Defendant's double jeopardy claim must be rejected in light of the Michigan Supreme Court holding in Wayne County Prosecutor v. Recorder's Court Judge, 406 Mich. 374, 280 N.W.2d 793 (1979), app. dis. sub nom. Brintley v. Michigan, 444 U.S. 948, 100 S.Ct. 418, 62 L.Ed.2d 317 (1979). In Wayne County Prosecutor, supra, 406 Mich. 379-398, 280 N.W.2d 793, the Court held that the double jeopardy test of Blockberger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. [99 MICHAPP 611] 306 (1932), turned on an analysis of what the prosecution was legally required to prove to obtain a conviction, and not what the prosecution established in a particular case. Here, the prosecution was legally required to prove that a sexual penetration occurred under circumstances involving the commission of some other felony. The prosecution was not legally required to prove unarmed robbery. Thus, under the Michigan Supreme Court's interpretation of Blockberger, no double jeopardy violation exists.
Furthermore, there is no constitutional infirmity with the convictions for unarmed robbery and first-degree criminal sexual conduct under the standard set out in People v. Martin, 398 Mich. 303, 247 N.W.2d 303 (1976). In Wayne County Prosecutor, supra, 406 Mich. 399-402, 280 N.W.2d 793, the Court held that where there is a clear expression of legislative intent to authorize multiple convictions and punishments arising out of a common act, there is no double jeopardy problem. In the instant case, there is a clear legislative intent to authorize multiple convictions and punishments. See People v. Robideau, 94 Mich.App. 663, 289 N.W.2d 846 (1980). We are thus bound by Wayne County Prosecutor, supra, to uphold both of defendant's convictions.
Defendant's other claims of error lack any merit and do not require discussion.
Affirmed.
While I concur in the result reached in this matter based on our Supreme Court's decision in Wayne County Prosecutor v. Recorder's Court Judge, 406 Mich. 374, 397-398, 280 N.W.2d 793 (1979), I write separately to indicate my disagreement with that decision and [99 MICHAPP 612] to reaffirm my...
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