Opinion
Docket Nos. 78-2851, 78-2852.
Decided January 22, 1980. Leave to appeal applied for.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, and Paul C. Louisell, Assistant Prosecuting Attorney, for the people.
Lerner Sobel, for defendant on appeal.
Pursuant to a sentence agreement, defendant on February 14, 1977, pled guilty to two charges of armed robbery, MCL 750.529; MSA 28.797, and two charges of possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). The two armed robberies to which defendant pled guilty were separate and distinct crimes, involving different victims, times, and geographical locations, although both occurred on the same day. Defendant subsequently received concurrent prison terms of two years on the first felony-firearm conviction and five years on the second, in addition to terms of one year and one day on each armed-robbery conviction, the latter to run concurrently with each other but consecutive to the felony-firearm sentences.
The sole issue presented by defendant on appeal which requires discussion is his contention that the mandatory five-year sentence imposed by the lower court for his second felony-firearm conviction was invalid and should have been two years instead. Simply stated, the question is whether defendant's pleas of guilty to two separate felony-firearm offenses, rendered at a single plea-taking session, satisfied the requirement of MCL 750.227b(1); MSA 28.424(2)(1) that "[u]pon a second conviction under this section, the person shall be imprisoned for 5 years".
The problem presented is no longer one of first impression. In People v Barrett, 93 Mich. App. 808; 287 N.W.2d 348 (1979), this Court analyzed a similar fact situation. There, as here, the defendant argued that the felony-firearm statute should be interpreted analogously to Michigan's habitual offender act, MCL 769.10 et seq.; MSA 28.1082 et seq., so that no enhanced punishment would be proper under MCL 750.227b(1); MSA 28.424(2)(1) unless the subsequent felony-firearm offense was committed after the defendant had been convicted of a previous felony-firearm charge. In rejecting this argument the Barrett Court observed (p 815):
"While both statutes are similar in that each is imbued with a general deterrent force common to all criminal statutes, they are strikingly different in language and purpose. The habitual offender act specifically excepts from its coverage the first-time offender whereas the felony-firearm statute applies to all offenders. The habitual offender statute was intended to afford a first offender an opportunity to reform. Thus, a time gap between convictions becomes important. By contrast, the felony-firearm statute is directed at punishing the use of firearms during unlawful acts and, as such, is not concerned with the time at which convictions are received."
We agree with the result reached in Barrett. The language of the felony-firearm statute is unambiguous and is distinguishable on its face from that of the habitual criminal act. Had the Legislature intended to do so, it could easily have incorporated into the felony-firearm statute the clear language already existing in the habitual offender act, and thus dictated the result argued for by defendant. Its failure to do so must be regarded as intentional and meaningful.
Defendant's allegation that the felony-firearm statute provides inadequate notice is without merit.
Affirmed.
CYNAR, P.J., concurred.
I must respectfully dissent. In my judgment in providing for increased terms of imprisonment for subsequent felony-firearm convictions it was the intent of the Legislature to discourage recidivism. The harsh sentencing consequences for subsequent offenders are meant for those who, having already served an additional two-year term of imprisonment for violation of the felony-firearm law, are not dissuaded from again pursuing the same course of conduct.
I would rule that despite the difference in language the felony-firearm act must be given the same interpretation as the habitual offender act and that the criminal activity supporting the subsequent conviction must have occurred after the prior conviction.
I would remand for resentencing.