People v. Morton

• Decision Date: 22 November 1985
• Docket Number: No. 75178,75178
• Citation: 377 N.W.2d 798,423 Mich. 650
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jerome MORTON, Defendant-Appellant.
• Court: Michigan Supreme Court

Page 798

377 N.W.2d 798

423 Mich. 650

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jerome MORTON, Defendant-Appellant.

No. 75178.

Supreme Court of Michigan.

Nov. 22, 1985.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., L. Brooks Patterson, Pros. Atty., Robert C. Williams, Chief Appellate Counsel, and John L. Kroneman, Asst. Pros. Atty., Pontiac, for the People.

State Appellate Defender by Mardi Crawford, Detroit, for defendant-appellant.

PER CURIAM.

The issue in this case is whether, where a defendant has committed separate felonies during a single transaction, he may be convicted of more than one count of possession of a firearm during the commission of a felony. Under these circumstances, it is permissible to enter more than one felony-firearm conviction, and we thus reverse in part the judgment of the Court of Appeals.

I

On March 7, 1981, two persons were at work in a gas station in Pontiac. A car entered the driveway. When one of the attendants saw a handgun lying on the front seat of the car, he and the other attendant retreated inside the station. Looking back, they saw the defendant pointing his gun at them. Hiding behind a steel door, they summoned the police, who arrested the defendant.

The defendant was charged in a four-count information. The first count alleged that the defendant had assaulted one of the attendants with a dangerous weapon. M.C.L. Sec. 750.82; M.S.A. Sec. 28.277. The second count alleged that the defendant was guilty of possession of a firearm during the commission of the assault with a dangerous weapon. M.C.L. Sec. 750.227b; M.S.A. Sec. 28.424(2). The third and fourth counts alleged, respectively, assault with a dangerous weapon and felony-firearm as to the second attendant.

The defendant was tried before a jury in July of 1981, and was found guilty as charged. Subsequent proceedings resulted in a new trial. This time, the defendant waived a trial by jury. A bench trial took place in April of 1983, and the defendant was again found guilty as charged. He was sentenced to concurrent terms of from twenty-eight to forty-eight months in prison for each assault conviction, and concurrent terms of two years in prison for each felony-firearm conviction. The assault sentences were to be served consecutively to the felony-firearm sentences.

The defendant appealed to the Court of Appeals, which affirmed the assault convictions and one of the felony-firearm convictions. ¹ The Court of Appeals vacated the other felony-firearm conviction on the ground that it constituted double jeopardy.

Defendant has filed a delayed application for leave to appeal, and the plaintiff has timely applied for leave to appeal as cross-appellant.

II

In setting aside one of the defendant's two convictions of felony-firearm, the Court of Appeals relied upon People v. Adams, 128 Mich.App. 25, 339 N.W.2d 687 (1983):

"The fourth issue is whether double jeopardy occurred when defendant was convicted of two counts of felony firearm for possession of a pistol during one continuous transaction.

"This Court recently in People v Larry Adams, 128 Mich App 25; 339 NW2d 687 (1983), in a well-documented opinion found that when one firearm is used and possessed in a continuous criminal transaction, only one felony-firearm conviction is authorized, notwithstanding that more than one felony may be committed during the course of the transaction. We follow that logic of Adams and vacate one felony-firearm conviction."

In Adams, pp. 32-34, 339 N.W.2d 687, the Court of Appeals employed the rule of lenity, as well as its interpretation of the intent of the Legislature, to justify setting aside one of defendant's convictions of felony-firearm:

"Defendant also argues that his conviction of two counts of possession of a firearm during the commission of a felony violated the constitutional prohibition against double jeopardy. MCL 750.227b(1); MSA 28.424(2)(1) provides in part:

" '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 or section 227a, is guilty of a felony, and shall be imprisoned for 2 years.'

"The prosecution relies on the [rule of Blockburger v United States, 284 US 299; 52 SCt 180, 76 LEd 306 (1932) ] and argues that the Legislature intended to authorize multiple punishment because each conviction requires proof of a fact that the other does not; that is, each conviction requires proof of the commission of a separate felony. While this may be true if one views defendant's two felony-firearm convictions separately, it must be borne in mind that each of those felony-firearm convictions is not violative of double jeopardy only because the felony-firearm statute reflects a clear legislative intent to impose multiple punishment. Wayne County Prosecutor [ v Recorder's Court Judge, 406 Mich 374; 280 NW2d 793 (1979).] However, we do not believe that the Legislature in authorizing such multiple punishment intended to authorize more than one felony-firearm conviction where there is but a single continuous criminal transaction involving possession of only a single firearm, notwithstanding that more than one felony may be committed during the course of that transaction. We note that defendant acquired a second firearm here, but only after both felonies were complete. Compare People v Mahone, 97 Mich App 192, 194; 293 NW2d 618 (1980).

"We so hold in view of the Legislature's use of the phrase 'the time he commits or attempts to commit a felony' in the felony-firearm statute and the rule of lenity in construing criminal statutes discussed in People v Bergevin, 406 Mich 307; 279 NW2d 528 (1979), and People v Johnson, 406 Mich 320; 279 NW2d 534 (1979). In Bergevin the Court held that, despite the alternative definitions of the crime in MCL 750.520b; MSA 28.581, the Legislature did not intend to authorize multiple convictions for kidnapping where only one person was abducted. Similarly, in Johnson the Court held that, despite the alternative definitions of the crime in MCL 750.520b; MSA 28.788(2), the Legislature did not intend to authorize multiple convictions for first-degree criminal sexual conduct where only one sexual penetration took place. Based on the foregoing, we vacate one of defendant's convictions for possession of a firearm during the commission of a felony."

III

The Court of Appeals has erred in its decision to vacate one of this defendant's convictions of felony-firearm. There is no need for us to state in detail the nature and extent of a defendant's right to be free from double jeopardy. We have recently examined this subject in People v. Robideau, 419 Mich. 458, 355 N.W.2d 592 (1984), People v. Wakeford, 418 Mich. 95, 341 N.W.2d 68 (1983), and People v. Carter, 415 Mich. 558, 330 N.W.2d 314 (1982). As in Wakeford, supra, 418 Mich. p. 111, 341 N.W.2d 68, the issue here is whether the Legislature intended to permit, under the circumstances of this case, entry of two convictions of felony-firearm. In the present case, the search for legislative intent begins and ends in the language of the statute: ²

"(1) 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 or section 227a, is guilty of a felony, and shall be imprisoned for 2 years. Upon a second conviction under this section, the person shall be imprisoned for 5 years. Upon a third or subsequent conviction under this section, the person shall be imprisoned for 10 years.

"(2) The term of imprisonment prescribed by this section shall be in addition to the sentence imposed for the conviction of the felony or the attempt to commit the felony, and shall be served consecutively with and preceding any term of imprisonment imposed for the conviction of the felony or attempt to commit the felony.

"(3) The term of imprisonment imposed under this section shall not be suspended. The person subject to the sentence mandated by this section shall not be eligible for parole or probation during the mandatory term imposed pursuant to subsection (1)." M.C.L. Sec. 750.227b; M.S.A. Sec. 28.424(2).

We believe it clear that the Legislature intended, with only a few narrow exceptions, ³ that every felony committed by a person possessing a firearm result in a felony-firearm conviction. Where, as here, the defendant is convicted of separate assaults, we perceive no reason why he may not also be convicted of separate counts of felony-firearm. The rule of lenity, relied upon in Adams, has no applicability in this case because of the clear and unambiguous expression of legislative intent found in the felony-firearm statute. Furthermore, vacating one such conviction does not reduce the defendant's time of imprisonment. People v. Sawyer, 410 Mich. 531, 302 N.W.2d 534 (1981).

For these reasons, we reverse in part the judgment of the Court of Appeals and, in lieu of granting leave to appeal to the prosecution, we reinstate the defendant's second conviction of felony-firearm. MCR 7.302(F)(1). Leave to appeal and leave to cross-appeal are in all other respects denied, because this Court is not persuaded that the questions presented should be reviewed by this Court.

WILLIAMS, C.J., and RILEY, BRICKLEY, RYAN, CAVANAGH and BOYLE, JJ., concur.

LEVIN, Justice.

The opinion of the Court states that "where a defendant has committed separate felonies during a single transaction, he may be convicted of [a separate] count of possession of a firearm" for "every felony committed" in the transaction. The opinion continues that the question is one of legislative intent and "the search for legislative intent begins and ends in the language of the statute:

" '(1) 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 or section 227a, is guilty of a felony, and shall be imprisoned for 2...