Summary
In Adair, the prosecution appealed the circuit court's order dismissing the defendant's felony-firearm charge on the basis that OUIL could not serve as an underlying felony for a felony-firearm conviction.
Summary of this case from People v. ReidOpinion
Docket No. 119692.
Decided April 10, 1990.
Frank J. Kelley, Attorney General, David L. Morse, Prosecuting Attorney, and Daniel J. Garber, Jr., Chief Assistant Prosecutor, for the people.
William R. Mollison, for defendant.
Before: NEFF, P.J., and MacKENZIE and JANSEN, JJ.
On August 8, 1989, the circuit court entered an order dismissing a charge of possession of a firearm during the commission of a felony in connection with the charge of driving while intoxicated, third offense, MCL 257.625(6); MSA 9.2325(6). The circuit court's opinion was based on its holding that the sentencing enhancement provisions of the OUIL statute could not be used as the underlying felony for the purposes of the felony-firearm statute, MCL 750.227b; MSA 28.424(2). The people appeal by leave granted, alleging that OUIL, third offense, can be used as the underlying felony for a felony-firearm charge. We agree and reverse.
The felony-firearm statute, MCL 750.227b; MSA 28.424(2), provides in part:
(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 two years.
By the plain language of the statute, operating a motor vehicle while under the influence of intoxicating liquor, third offense, MCL 257.625(6); MSA 9.2325(6), is a felony. We are constrained to follow and apply the "plain meaning" of the statutes as set forth by the Legislature. Under the "plain meaning" rule, if the language used by the Legislature is clear and unambiguous, no judicial interpretation of the statute is permitted. Wymer v Holmes, 429 Mich. 66, 76; 412 N.W.2d 213 (1987); People v Tucker, 177 Mich. App. 174, 178; 441 N.W.2d 59 (1989), lv den 433 Mich. 873 (1989). Further, a cardinal rule of statutory construction is that the express mention of one thing in the statute generally implies the exclusion of other similar things. By expressly excluding two felonies, the felony-firearm statute, by implication, applies to all other felonies. People v Elowe, 85 Mich. 744; 272 N.W.2d 596 (1978). On the basis of the clear language of the felony-firearm statute and the OUIL statute, we find that the felony-firearm statute applies in the present situation.
We are not persuaded by defendant's argument that the present case is analogous to the Tucker decision. In Tucker, this Court held that OUIL, third offense, could not act as the underlying felony for an habitual offender charge. Tucker, supra at 176. The Tucker panel was concerned with multiplying defendant's punishment beyond that envisioned by the Legislature by the stacking of two sentence enhancement provisions. This rationable does not apply to the present case since the felony-firearm statute creates a separate criminal offense and does not simply constitute a sentencing enhancement mechanism. People v Burgess, 419 Mich. 305, 309; 353 N.W.2d 444 (1984). The trial court erred in dismissing the charge of felony-firearm against defendant.
Reversed and remanded for further proceedings consistent with our opinion. We do not retain jurisdiction.