People v. Mitchell
People v. Mitchell
Opinion of the Court
Defendant was charged with receiving or concealing stolen firearms or ammunition
The sole question before us is whether it is a violation of the United States and Michigan Constitutions’ prohibition against double jeopardy
There are various protections flowing from the double jeopardy guarantee of the United States and Michigan Constitutions: it precludes a second prosecution for the same offense after acquittal or conviction, and also protects against multiple punishments for the same offense. It is this last protection — protection against multiple punishments for the same offense — with which we are concerned today. This protection is designed to ensure that courts confine their sentences to the limits established by the Legislature. People v Sturgis, 427 Mich 392; 397 NW2d 783 (1986).
Where multiple punishment is involved, the Double Jeopardy Clause acts as a restraint on the prosecutor and the Courts, not the Legislature. Brown v Ohio, 432 US 161; 97 S Ct 2221; 53 L Ed 2d 187 (1977). Where “a legislature specifically authorizes cumulative punishment under two statutes, regardless of whether those two statutes proscribe the ‘same’ conduct under Blockburger,
Thus, we need only determine whether the Legislature has authorized multiple punishments. To do so, we look to the subject, language, and history of the statutes. Robideau, supra at 486.
MCL 750.535b; MSA 28.803(2)
MCL 750.227b; MSA 28.424(2) specifically excludes violations of four felonies — § 223 (unlawful sale of a firearm), § 227 (carrying a concealed weapon), § 227a (unlawful possession of a firearm by a licensee) and
This Court has previously discussed the history and legislative intent of the felony-firearm legislation. In People v Morton, 423 Mich 650, 656; 377 NW2d 798 (1985), this Court said that “it [is] clear that the Legislature intended, with only a few narrow exceptions, that every felony committed by a person possessing a firearm result in a felony-firearm conviction.” In People v Sturgis, supra at 407, we noted that “[t]he language and structure of the statute thus contain no indication that the Legislature intended that a felony-firearm offense was a sentence-enhancement statute which precluded the charging and conviction of separate offenses.” In Sturgis, supra at 407-408, this Court also concluded that “[t]he legislative history of the statute also reflects a commitment to reach all but the excepted felonies.”
In 1990, the Legislature amended the felony-firearm statute. It added to the list of excepted felonies § 223 (unlawful sale of a firearm) and § 230 (alteration of identifying marks on a firearm). 1990 PA 321. We find it significant that in this amendment the Legislature did not add the felony at question here today, § 535b, receiving or concealing stolen firearms or ammunition, to the list of excepted felonies. Nor did it add any concluding catch-all phrase such as to trigger an
We reverse the decision of the Court of Appeals, reinstate the charge against defendant, and remand for further proceedings.
MCL 750.535b; MSA 28.803(2).
MCL 750.227b; MSA 28.424(2).
220 Mich App 439; 559 NW2d 105 (1996).
US Const, Am V provides, in pertinent part: “nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb”; Const 1963, art 1, § 15 provides: “No person shall be subject for the same offense to be twice put in jeopardy.”
5 The Blockburger test says that “The applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not.” Blockburger v United States, 284 US 299, 304; 52 S Ct 180; 76 L Ed 306 (1932).
MCL 750.535b(2); MSA 28.803(2)(2) states, in pertinent part:
A person who receives, conceals, stores, barters, sells, disposes of, pledges, or accepts as security for a loan a stolen firearm or stolen ammunition, knowing that the firearm or ammunition was stolen, is guilty of a felony, punishable by imprisonment for not more than 10 years or by a fine of not more than $5,000.00, or both.
The felony firearm statute, MCL 750.227b(l); MSA 28.424(2)(1) provides:
A person who carries or has in his or her possession a firearm when he or she commits or attempts to commit a felony, except a violation of section 223 [unlawful sale of a firearm], section 227 [carrying a concealed weapon], 227a [unlawful possession of a firearm by a licensee] or 230 [alteration of identifying marks on a firearm], is guilty of a felony, and shall be imprisoned for 2 years.
Dissenting Opinion
I respectfully dissent.
We have been asked to determine whether a person apprehended with a stolen firearm may be charged and convicted of both receiving or concealing a stolen firearm and felony-firearm. The defendant in this
In resolving the issue before us, the appropriate analysis begins with an inquiry into the intent of the Legislature. The object is to determine whether punishment under the two statutes in question for defendant’s single act of possession violates the Double Jeopardy Clauses of the state and federal constitutions. People v Robideau, 419 Mich 458, 486; 355 NW2d 592 (1984).
We examine the subject, language, and history of the statutes. Id. at 486. We are mindful that the Legislature is free to determine what constitutes a criminal offense and, if it specifically intends, may authorize several penalties for a single criminal act. People v Wakeford, 418 Mich 95, 111; 341 NW2d 68 (1983).
I believe that the majority in this case has glossed over an important principle used in construing legislative intent: Where two statutes prohibit violation of a single social norm, albeit in somewhat different manners, the Legislature is normally deemed not to have intended multiple punishments. Robideau, supra at 487.
The two statutes under scrutiny in this case are MCL 750.535b; MSA 28.803(2) and MCL 750.227b; MSA 28.424(2). The former concerns stolen firearms and ammunition, and punishes those who receive,
Both statutes prohibit violation of the same social norm: deterrence of the unlawful possession of firearms and ammunition. Therefore, it should not be readily assumed that the Legislature intended multiple punishments for one act violating both statutes.
The majority concludes that the Legislature intended the felony-firearm statute to provide an additional sentence for anyone possessing a firearm who commits a felony other than those four explicitly enumerated. Ante at 698. It cites language from People v Sturgis
We conclude that the history, language, and structure of the statutes indicate that felony-firearm and concealed weapon offenses are distinct offenses which may be separately punished in a single trial when the concealed weapon*701 offense is not the predicate of the felony-firearm offense. [Id. at 410.]
The rationale in Sturgis is consistent with that in Wayne Co Prosecutor v Recorder’s Court Judge.
The majority overrules People v Walker, 167 Mich App 377; 422 NW2d 8 (1988). That case is distinguishable from the present case, also. In Walker, the Court of Appeals held that assault with intent to do great bodily harm less than murder was sufficient to serve as the underlying felony for the felony-firearm conviction. Thus, in Sturgis, Wayne Co Prosecutor, and Walker, the underlying felony involved an act separate from possession of a firearm during the commission of a felony.
The same rationale has been applied by the United States Supreme Court. In Ball v United States,
Against this backdrop of case law, it is implausible to conclude that the Michigan Legislature intended a defendant be punished twice for a single instance of possession of a single gun. We have before us a case in which the intent of the Legislature is so apparent that it overrides the literalness of the “except” clause relied on by the majority. It is noteworthy that the felonies listed in the “except” clause of the felony-firearm statute all involve possession of a firearm. It follows that the Legislature did not intend to impose duplicate punishment when the predicate felony involves the possession of a weapon, as contrasted with the use of a weapon.
Past decisions of this Court suggest that the intent of the Legislature is not that a possession-based firearm offense should become the predicate for a felony-firearm charge. Certainly, a contrary intent is not inevitable from a common-sense reading of the statute and its legislative history.
Any lingering uncertainty or ambiguity should be resolved in favor of lenity. As this Court stated in Robideau, “If no conclusive evidence of legislative intent can be discerned, the rule of lenity requires the
Therefore, I would affirm the decision of the Court of Appeals.
A charge of carrying a concealed weapon was dismissed.
MCL 750.535b; MSA 28.803(2).
MCL 750.227b; MSA 28.424(2).
427 Mich 392; 397 NW2d 783 (1986).
406 Mich 374; 280 NW2d 793 (1979).
Although the Court in Wayne Co Prosecutor applied the Blockburger test, it recognized that issues challenging multiple punishment are to be decided by determining legislative intent. Wayne Co Prosecutor, supra at 389. Blockburger v United, States, 284 US 299; 52 S Ct 180; 76 L Ed 306 (1932).
470 US 856; 105 S Ct 1668; 84 L Ed 2d 740 (1985).
Although the Court utilized the Blockburger test to determine legislative intent, I believe that a Robideau analysis would yield the identical result.
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