People v. Bridges
People v. Bridges
Opinion of the Court
Defendant was convicted on his pleas of guilty to three counts of armed robbery, MCL 750.529; MSA 28.797, and to one count under the felony-firearm statute, MCL 750.227b; MSA 28.424(2). He was sentenced to concurrent prison terms of from four to ten years on the armed robbery convictions, and to the mandatory two-year consecutive term on the felony-firearm conviction. He now appeals as of right.
As Judge Riley’s dissent notes, defendant’s sole argument on appeal is that an insufficient factual basis existed for acceptance of his plea to the felony-firearm charge because there was no evidence that defendant ever personally possessed a firearm. See Guilty Plea Cases, 395 Mich 96, 128-
The felony-firearm statute, MCL 750.227b; MSA 28.424(2), states 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 question of whether a person who does not actually possess a firearm may be convicted under the statute as an aider and abettor has engendered a split in the decisions of this Court. Compare People v Powell, 90 Mich App 273; 282 NW2d 803 (1979), and People v Walter Johnson, 85 Mich App 654, 658-659; 272 NW2d 605 (1978), lv gtd 407 Mich 882 (1979), with People v Tavolacci, 88 Mich App 470; 276 NW2d 919 (1979), lv gtd 407 Mich 882 (1979). I would follow Powell and Walter Johnson, and hold that personal possession is required.
I believe this result is mandated by the extraordinary nature of the felony-firearm statute. In response to the rising incidence of the use of firearms during the commission of crimes, the
While I would premise the vacation of defendant’s felony-firearm conviction solely on these grounds, I would also suggest that even if defendant could be convicted as an aider and abettor, an insufficient factual basis was established to convict defendant as an aider and abettor of a felony-firearm offense. The statute provides:
"Every person concerned in the commission of an offense, whether he directly commits the act constituting the offense or procures, counsels, aids, or abets in its commission may hereafter be prosecuted, indicted, tried and on conviction shall be punished as if he had directly committed such offense.” MCL 767.39; MSA 28.979.
To be convicted as an aider and abettor, one must
Because defendant’s testimony clearly established that he did not possess a firearm during the robbery, his conviction under the felony-firearm statute must be vacated for failure to establish the requisite factual basis. Alternatively, I would reverse his felony-firearm conviction for failure to establish that he aided and abetted others in the possession of a firearm in the course of a felony. His armed robbery convictions should be affirmed.
Affirmed in part and reversed in part.
Judge Kelly’s opinion also expresses approval of the rationale in Powell and Walter Johnson.
See generally, Schwartz, Multiple Punishment for the "Same Offense": Michigan Grapples with the Deñnitional Problem, 25 Wayne L Rev 825, 839-841 (1979).
MCL 767.39; MSA 28.979.
It was applied to the offense of possession of marijuana in People v Doemer, 35 Mich App 149; 192 NW2d 330 (1971).
See 47 ALR3d 1236.
Concurring Opinion
(concurring). I concur in the result reached by Judge Bronson but do not approve the rationale. I would follow the rationale in People v Powell, 90 Mich App 273; 282 NW2d 803 (1979), and People v Walter Johnson, 85 Mich App 654; 272 NW2d 605 (1978). I would have much preferred to affirm this defendant’s convictions without prejudice to granting the defendant the option of having his pleas set aside if he preferred. The reason I would have preferred that alternative is because the record is clear that this was a negotiated sentence bargain in which the trial court agreed to sentence the defendant to four to ten years on three armed robbery charges on each of which he was exposed to a life maximum. I could not persuade either of my learned colleagues to agree to this alternative.
I concur only in the result.
Dissenting Opinion
(dissenting). Defendant pled guilty
Defendant’s sole contention on appeal is that, since he never personally possessed a firearm during the robberies but merely aided and abetted those who did, he cannot be convicted under the felony-firearm statute. There is presently a split of opinion in the Court of Appeals on this issue. See People v Tavolacci, 88 Mich App 470; 276 NW2d 919 (1979), People v Walter Johnson, 85 Mich App 654; 272 NW2d 605 (1978). With all due respect to the Johnson panel, I am persuaded (particularly in the wake of Wayne County Prosecutor v Recorder’s Court Judge, 406 Mich 374; 280 NW2d 793 [1979]), that Tavolacci should control this case, as its reasoning most closely executes the intent of the felony-firearm act. Neither the aider and abettor statute (MCL 767.39; MSA 28.979) nor the felony-firearm statute expressly or impliedly limits the persons encompassed by its terms. Further, punishing aiders and abettors is consistent with and supportive of the felony-firearm statute’s object of penalizing defendants who use firearms in the commission of felonies. Tavolacci, supra, 474-475.
"Punishment of those who aid and abet this crime serves as a deterrence to such aiding and abetting. Consequently less persons would be likely to act as aiders and abettors. This reduction serves as additional deterrence upon the commission of the crime as well, as there are likely to be persons who are unable or unwilling to commit the offense of 'felony-firearm’ without some assistance.” Id., 475.
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