People v. Harris

• Decision Date: 23 January 1979
• Docket Number: Docket Nos. 77-4874,77-4937
• Citation: 88 Mich.App. 280,276 N.W.2d 582
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Curtis B. HARRIS, Ulysses Buchanan, Jr., Defendants-Appellants.
• Court: Court of Appeal of Michigan — District of US

Page 582

276 N.W.2d 582

88 Mich.App. 280

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Curtis B. HARRIS, Ulysses Buchanan, Jr., Defendants-Appellants.

Docket Nos. 77-4874, 77-4937.

Court of Appeals of Michigan.

Jan. 23, 1979.

Released for Publication March 29, 1979.

Rehearing Denied April 30, 1979.

Bruce R. Saperstein, Detroit, for defendants-appellants.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Edward R. Wilson, Appellate Chief, Asst. Pros. Atty., Larry Roberts, Asst. Pros. Atty., for plaintiff-appellee.

Before ALLEN, P. J., and MAHER and TOWNSEND, ^* JJ.

TOWNSEND, Judge.

Defendants appeal from their convictions on pleas of nolo contendere to armed robbery, M.C.L. § 750.529; M.S.A. § 28.797, and felony firearm, M.C.L. § 750.227b; M.S.A. § 28.424(2), violations.

On January 24, 1977, defendants and another person took the pants and a wallet from a man at an apartment located on East Jefferson in Detroit. Neither defendant remembered a weapon and each denied that they carried one. The complaining witness testified that Buchanan had a gun.

Defendants raise five issues on appeal.

I.

Does the felony-firearm statute violate the constitutional prohibition against revising, altering or amending other statutes by reference to title only?

This issue has been decided contrary to defendants' claim in numerous recent cases, E. g. People v. Johnson, 85 Mich.App. 654, 660, 272 N.W.2d 605 (1978); People v. Hughes, 85 Mich.App. 674, 680-681, 272 N.W.2d 567 (1978).

II.

Does the felony-firearm statute violate the constitutional prohibition against double jeopardy?

The felony-firearm statute, M.C.L. § 750.227b; M.S.A. § 28.424(2) provides in part as follows:

"A person who carries or has in his possession a firearm at the time he commits or attempts to commit a felony * * * is guilty of a felony * * * . Upon a second conviction under this section * * * . Upon a third or subsequent conviction under this section * * * ."

The above language is language commonly used to create a separate felony offense. Such statute is clear and not ambiguous on its face and by its terms does create a separate felony offense. A single conviction under the felony firearms statute is valid and enforceable. There being no ambiguity and no patent invalidity, no interpretation is necessary or permissible. People v. Carey, 382 Mich. 285, 292-293, 170 N.W.2d 145 (1969).

A double jeopardy problem arises only when a person is convicted Both of the underlying felony and felony firearm. By definition, the underlying felony is a necessarily included offense of the felony-firearm offense. One cannot be convicted both of the greater offense and of a necessarily included offense arising out of the same facts. The landmark United States Supreme Court case adopting such principle is Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), repeatedly cited in later United States Supreme Court cases including Simpson v. United States, 435 U.S. 6, 11, 98 S.Ct. 909, 55 L.Ed.2d 70 (1978). Such principle likewise has been adopted by the Supreme Court of the State of Michigan in the case of People v. Martin, 398 Mich. 303, 309, 247 N.W.2d 303 (1976), and People v. Stewart (On Rehearing), 400 Mich. 540, 548-549, 256 N.W.2d 31 (1977), as well as by other panels of the Michigan Court of Appeals. We cite with approval the case of Wayne County Prosecutor v. Recorders Court Judge, 85 Mich.App. 727, 272 N.W.2d 587 (1978).

Upon the same principle, one cannot be convicted of first-degree murder and second-degree murder based on the same occurrence and victim, or of armed robbery and unarmed robbery, based on the same occurrence and victim, or of felony murder and first-degree murder (People v. Hall, 83 Mich.App. 632, 637-638, 269 N.W.2d 476 (1978)). The statute in question in this case is no more invalid than the statutes which create the above-mentioned offenses. However, application of such statute to accomplish a double conviction and a double punishment based upon the same occurrence violates constitutional prohibitions against double jeopardy.

Only one of the two convictions must fall. We reverse the felony-firearm conviction. The armed robbery conviction and sentence are affirmed.

III.

Did the trial judge fail to obtain a sufficient factual basis for defendant Harris' plea to felony-firearm?

Because we reversed the felony-firearm conviction based upon Issue II, we need not address Issue III.

IV.

Did the trial judge fail to state his reasons for believing that the interests of defendants and the proper administration of justice permitted acceptance of the nolo pleas?

A careful review of the transcript convinces us that the court properly met the requirements of GCR 785.7(3)(b)(i), that he state on the record "why a plea of nolo contendere is appropriate" and had appropriate, adequate reason to accept the nolo contendere pleas of defendants. Such defendants were either unable or unwilling to relate the details of the crime. People v. Seaman, 75 Mich.App. 546, 550, 255 N.W.2d 680 (1977); Guilty Plea Cases, 395 Mich. 96, 134, 235 N.W.2d 132 (1975).

V.

Did the trial judge improperly fail to obtain updated presentence reports for the defendants?

Defendants were in confinement during the 6 1/2 month period in question. Defense counsel offered no additions to the original presentence reports. Updating such reports would have been a mere formality. People v. Potts, 46 Mich.App. 538, 547-548, ...