People v. Green

• Citation: 493 N.W.2d 478,196 Mich.App. 593
• Decision Date: 02 November 1992
• Docket Number: Docket No. 133442
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Donald Melvin GREEN, Defendant-Appellant.
• Court: Court of Appeal of Michigan (US)

Page 478

493 N.W.2d 478

196 Mich.App. 593

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Donald Melvin GREEN, Defendant-Appellant.

Docket No. 133442.

Court of Appeals of Michigan.

Submitted Aug. 4, 1992, at Detroit.

Decided Nov. 2, 1992, at 9:35 a.m.

Released for Publication Jan. 19, 1993.

Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., Timothy A. Baughman, Chief of Research, Training, and Appeals, and Jeffrey Caminsky, Asst. Pros. Atty., for the People.

David N. Smokler, Huntington Woods, for defendant-appellant on appeal.

Before CORRIGAN, P.J., and MICHAEL J. KELLY and GRIFFIN, JJ.

MICHAEL J. KELLY, Judge.

Following a jury trial, defendant was convicted of possession of less than twenty-five grams of cocaine and possession of less than twenty-five grams of heroin, MCL 333.7403(2)(a)(v); MSA 14.15(7403)(2)(a)(v). He was sentenced to concurrent terms of one to four years' imprisonment and now appeals as of right.

Defendant's first claim is an issue of first impression in Michigan. He argues that his conviction of two counts of possession of a controlled substance arising out of a "single act" of possessing trace amounts of cocaine and heroin violates the constitutional guarantee of double jeopardy. We hold that because defendant committed two separate criminal offenses, possession of less than twenty-five grams of cocaine and possession of less than twenty-five grams of heroin, his right not to be placed twice in jeopardy was not violated by his multiple drug convictions.

Both the United States and Michigan Constitutions prohibit placing a defendant twice in jeopardy for a single offense. U.S. Const. Am. V; Const.1963, art. 1, Sec. 15; People v. Sturgis, 427 Mich. 392, 398-399, 397 N.W.2d 783 (1986); People v. Shipe, 190 Mich.App. 629, 631, 476 N.W.2d 490 (1991). Not only do these guarantees protect a defendant against successive prosecutions for the same offense, but also they protect a defendant against multiple punishments for the same offense. Sturgis, supra, 472 Mich. at 398, 397 N.W.2d 783; Shipe, supra, 190 Mich.App. at 631, 476 N.W.2d 490.

The dispositive question in this case is whether the Legislature intended that two convictions might result under Sec. 7403(2)(a)(v) for the simultaneous possession of two prohibited substances. People v. Wakeford, 418 Mich. 95, 111, 341 N.W.2d 68 (1983); Shipe, supra, 190 Mich.App. at 631, 476 N.W.2d 490. The relevant statutory provision, M.C.L. Sec. 333.7403; M.S.A. Sec. 14.15(7403), provides in pertinent part:

(1) A person shall not knowingly or intentionally possess a controlled substance ... unless the controlled substance ... was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of the practitioner's professional practice, or except as otherwise authorized by this article.

(2) A person who violates this section as to:

(a) A controlled substance classified in schedule 1 or 2 which is either a narcotic drug or described in section 7214(a)(iv), and:

* * * * * *

(v) Which is in an amount less than 25 grams of any mixture containing that controlled substance is guilty of a felony, punishable by imprisonment for not more than four years or a fine of not more than $25,000, or both.

We believe that the above statutory language supports multiple punishments where a defendant simultaneously possesses more than one type of controlled substance proscribed by the statute. It is clear from the language employed in Sec. 7403 that the Legislature intended the imposition of criminal liability to turn on the consideration of two separate factors. The first factor is the amount of a controlled substance possessed, as evidenced by the punishment provisions that authorize the imposition of increasingly severe punishments as the amount of controlled substance possessed increases. M.C.L. Sec. 333.7403(2)(a)(i-v); ...