Michigan Court of Appeals, 1979

People v. Berry

People v. Berry
Michigan Court of Appeals · Decided March 6, 1979 · Bashara, Brennan, Gillis
88 Mich. App. 788; 279 N.W.2d 316; 1979 Mich. App. LEXIS 2034

People v. Berry

Opinion of the Court

V. J. Brennan, J.

On October 11, 1977, defendant Joyce Berry pled guilty to armed robbery, MCL 750.529; MSA 28.797, assault with intent to rob while armed, MCL 750.89; MSA 28.284, and two counts of possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). Defendant was sentenced to a total of 7 to 15 years in prison and brings this appeal by right.

Of the three issues raised by defendant on appeal only one merits discussion. We have held in People v Blount, 87 Mich App 501; 275 NW2d 21 (1978), that the rule against double jeopardy prohibits separate convictions on both felony-firearm and the underlying felony. In accordance with that opinion we set aside the two convictions for felony-firearm. However, the defendant’s sentence as an *790augmentation of the penalty for the underlying felonies is upheld.

Reversed in part; affirmed in part.

Bashara, J., concurred.

Concurring in Part

J. H. Gillis, P.J.

(concurring in part, dissenting in part). I agree with Judge Brennan’s opinion except for the last paragraph. I agree that the double jeopardy provisions of both the Michigan and United States Constitutions prohibit separate convictions on both the felony-firearm and the underlying felony and I would set aside the two convictions for felony-firearm and the penalty imposed as a result thereof. See my dissenting opinion in People v Moore, 87 Mich App 475; 275 NW2d 19 (1978).

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