People v. Hughes, Docket No. 77-2649

Decision Date20 September 1978
Docket NumberDocket No. 77-2649
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. Gary HUGHES, Defendant-Appellant. 85 Mich.App. 674, 272 N.W.2d 567
CourtCourt of Appeal of Michigan — District of US

[85 MICHAPP 680] Bruce R. Saperstein, Detroit, for defendant-appellant.

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

Before R. B. BURNS, P. J., and BRONSON and WALSH, JJ.

R. B. BURNS, Presiding Judge.

Defendant pled guilty to robbery armed, M.C.L. § 750.529; M.S.A. § 28.797, and possession of a firearm during commission of a felony, M.C.L. § 750.227b; M.S.A. § 28.424(2), and appeals. We affirm.

Although defendant argues that he did not knowingly and understandingly waive various constitutional rights before pleading guilty, the trial court complied with GCR 1963, 785.7. A knowing and understanding waiver was implicit in the plea procedure.

Defendant's argument that the felony-firearm statute, M.C.L. § 750.227b; M.S.A. § 28.424(2), is unconstitutional because it amended a large number of [85 MICHAPP 681] statutes without re-enactment and publication, contrary to Const.1963, art. 4, § 25, is without merit, since amendment by implication is not the evil sought to be avoided by the constitutional provision. Advisory Opinion re Constitutionality of 1972 PA 294, 389 Mich. 441, 471-474, 208 N.W.2d 469, 476-478 (1973).

Defendant also argues that his felony-firearm conviction must be set aside because it violates constitutional prohibitions against double jeopardy. U.S.Const., Am. V, Const.1963, art. 1, § 15.

The double jeopardy clause 1 provides that no person shall "be subject for the same offense to be twice put in jeopardy".

"(The clause) serves principally as a restraint on courts and prosecutors. The legislature remains free under the (d)ouble (j)eopardy (c)lause to define crimes and fix punishments; but once the legislature has acted courts may not impose more than one punishment for the same offense and prosecutors ordinarily may not attempt to secure that punishment in more than one trial." Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187, 193-194 (1977).

Because many statutory crimes are duplicative, it is well established that separate statutory crimes may be the "same offense" under the double jeopardy clause, even though they are not identical in either constituent elements or actual proof. Brown v. Ohio, supra, at 164, 97 S.Ct. at 2224, 53 L.Ed.2d at 193. Each case ultimately turns upon whether the Legislature intended a particular act to be punished by only one or more statutes. See Gore v. United States, 357 U.S. 386, 78 S.Ct. 1280, 2 L.Ed.2d 1405 (1958). Unfortunately, it [85 MICHAPP 682] is rarely possible to divine legislative intent in this area, as the multiple punishment issue rarely receives explicit legislative consideration. Gore v. United States, supra, at 394, 78 S.Ct. at 1285, 2 L.Ed.2d at 1411 (Warren, C. J., dissenting). As a consequence the courts have developed tests to determine whether separate statutory crimes are the "same offense". See, E. g., Harris v. Oklahoma, 433 U.S. 682, 97 S.Ct. 2912, 53 L.Ed.2d 1054 (1977), Brown v. Ohio, supra, Blockburger v. United States,284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), People v. Stewart (On Rehearing), 400 Mich. 540, 256 N.W.2d 31 (1977), People v. Martin, 398 Mich. 303, 247 N.W.2d 303 (1976).

Although it may be argued with some force that application of the above tests to the instant case would indicate the presence of a double jeopardy problem, but see, E. g., Kowalski v. Parratt, 533 F.2d 1071 (CA 8, 1976), Cert. den. 429 U.S. 844, 97 S.Ct. 125, 50 L.Ed.2d 115 (1976), resort need not be had to the tests where the legislative intent is, as here, apparent.

The statute applies by its terms to all felonies except those explicitly excluded.

"A person who carries or has in his possession a firearm at the time he commits or attempts to commit a felony, except the violation of section 227 (M.C.L.A. § 750.227; M.S.A. § 28.424 carrying a concealed weapon) or section 227a (M.C.L.A. § 750.227a; M.S.A. § 28.424(1) unlawful possession of a pistol by a licensee), is guilty of a felony, and shall be imprisoned for 2 years." M.C.L. § 750.227b; M.S.A. § 28.424(2).

Expressio unius est exclusio alterius. "Felony" includes robbery armed. M.C.L. § 750.529; M.S.A. § 28.797. By this statute the Legislature has attempted to make certainty of minimal punishment [85 MICHAPP 683] the standard where firearms are involved in the commission of felonies. The minimal punishment purpose applies with equal force to robbery armed crimes as to other crimes. As it cannot be doubted that the Legislature could have amended the robbery armed statute to add as a proviso that there be a minimal punishment where the dangerous weapon is a firearm without offending the double jeopardy clause, see Gore v. United States, supra, there is no double jeopardy impediment to its attainment of the same goal by separate statute.

Since the Legislature intended the type of result obtained in the instant case, the convictions do not violate double jeopardy protection.

Affirmed.

BRONSON, Judge, concurring.

I concur in the opinion of Judge R. B. Burns, but write separately to state my reasoning.

At issue in this case is the meaning of the constitutional prohibition of double jeopardy. 1 Double jeopardy has three different aspects: it bars a second prosecution for the same offense after acquittal, it bars a second prosecution for the same offense after conviction, and it protects against multiple punishment for the same offense. North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). 2 [85 MICHAPP 684] It is the last protection that against multiple punishment with which we are here concerned.

My research has revealed that much of the discussion of the constitutional prohibition on multiple punishment fails to satisfactorily explicate the underpinnings of that protection. See Note: Twice in Jeopardy, 75 Yale L.J. 262 (1965). The courts have failed to address the vital question: why is it wrong to cumulate punishment? Id. at 301. 3

The protection against multiple punishment is a restraint on courts and prosecutors. Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977). 4 Note, Supra, at 304-308. This is because the Legislature is the proper institution to define offenses and provide for their punishment. The Legislature often provides for different statutory offenses which could apply to the same act. In such a case, the prohibition on multiple punishment prevents courts from cumulating punishment where it appears[85 MICHAPP 685] that the Legislature did not intend that the defendant be cumulatively punished. See Gore v. United States, 357 U.S. 386, 78 S.Ct. 1280, 2 L.Ed.2d 1405 (1958). As an aid to ascertaining the Legislature's intent, courts have applied certain rules of construction. For example, it is presumed that the Legislature did not intend to punish cumulatively a greater and necessarily included offense. Kirchheimer, The Act, the Offense and Double Jeopardy, 58 Yale L.J. 513 (1949); Note, Supra, at 318-319. In short, a "rule of lenity" prohibits multiple punishment where the legislative intent is unclear or doubtful. See People v. Nelson, 79 Mich.App. 303, 261 N.W.2d 299 (1977).

Where the legislative intent regarding punishment is clear, however, there is no multiple punishment problem. Cf. People v. Nelson, supra. The danger against which the constitutional prohibition is directed is not present; the court is not multiplying punishment.

In the case at bar, the Legislature has provided, in clear and unmistakable terms, for two convictions and a minimum two-year sentence where a person commits or attempts to commit a felony while in possession of a firearm. Because the legislative intent is clear, there can be no multiple punishment problem; there is no possibility of the court cumulating punishment. Vacating a conviction in this case would undermine the acknowledged function of the Legislature: to define and set the punishment for offenses. It cannot be contended that an individual needs constitutional double jeopardy protection against the Legislature's clear exercise of its proper penological function. 5

[85 MICHAPP 686] This is not, as the dissent asserts, a case of the court abdicating its proper constitutional function. Rather, the problem is one of defining the constitutional protection against multiple punishment. I believe that protection only prevents the courts and prosecutors from multiplying punishment Absent a clear legislative directive prescribing punishment. Where the statutory scheme evidences a clear legislative intent that a defendant be punished under separate statutes, there is no multiple punishment problem. Thus, it is illogical to speak of the court abandoning its function by deferring to the Legislature where the Legislature's intent is manifest.

Thus, I agree that both convictions should be affirmed in the case at bar.

I also believe that two aspects of the dissent deserve comment.

First, the dissent, applying the Blockburger 6 test, finds that armed robbery and felony-firearm are the "same offense". I disagree.

Under Blockburger, two statutory provisions define different offenses if: "each provision Requires proof of an additional fact which the other does not". 284 U.S. at 304, 52 S.Ct. at 182 (emphasis added). Clearly, felony-firearm requires proof of a fact not required to convict of armed robbery: possession of a firearm. Armed robbery also requires the proof of facts not Required for conviction of felony-firearm, E. g., a robbery. A robbery need not be proved to establish a felony-firearm violation; Any felony will [85 MICHAPP 687] suffice....

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