
    PEOPLE v DRAKE JOHNSON
    Docket Nos. 77-2754, 77-2755.
    Submitted June 15, 1978, at Detroit
    Decided September 20, 1978.
    Leave to appeal applied for.
    Drake L. Johnson pled guilty to separate counts of armed robbery and the possession of a firearm in the commission of a felony. He was sentenced to consecutive sentences on each conviction in Detroit Recorder’s Court, Joseph E. Maher, J. The question on appeal is whether double jeopardy bars conviction for possession of a firearm during the commission of armed robbery. Held:
    
    A conviction of an underlying felony not excepted by the felony-firearm statute and of possession of a firearm under the statute does not involve double jeopardy, double sentence, or double punishment.
    Affirmed.
    N. J. Kaufman, P. J., dissents. He would hold that double jeopardy is violated where a defendant is convicted twice on separate counts involving identical proofs; the resulting multiple conviction and multiple punishment is unconstitutional.
    Opinion of the Court
    1. Constitutional Law — Criminal Law — Statutes—Felony-Firearm — Double Jeopardy — Double Punishment.
    The felony-firearm statute is a sentence augmenting statute, which was intended by the Legislature to require a specific additional penalty where a firearm is carried or possessed at the time of committing or attempting to commit a felony not excepted by the statute; a conviction under the statute does not involve double jeopardy, double sentence, or double punishment.
    References for Points in Headnotes
    [1] 21 Am Jur 2d, Criminal Law § 189.
    79 Am Jur 2d, Weapons and Firearms § 24.
    [2] 21 Am Jur 2d, Criminal Law § 189.
    [3] 21 Am Jur 2d, Criminal Law § 166.
    
      Dissent by N. J. Kaufman, P. J.
    2. Criminal Law — Double Jeopardy — Separate Counts — Identical Proofs — Constitutional Law.
    
      The prohibition against double jeopardy embodied in the United States and Michigan Constitutions is violated where a defendant is convicted twice on separate counts involving identical proofs; the resulting multiple conviction and multiple punishment cannot be constitutionally condoned (US Const, Am V, Const 1963, Art 1, § 15).
    
    3. Constitutional Law — Legislature’s Intent — Double Jeopardy— Criminal Law.
    
      The intent of the Legislature cannot override the mandates of the United States and Michigan Constitutions regarding the prohibition against double jeopardy; the Legislature cannot sanction double convictions and double punishments for the same crime by saying "we intend it so”.
    
    
      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Michael R. Mueller, Director, Prosecutor’s Repeat Offenders Bureau, and Larry L. Roberts, Assistant Prosecuting Attorney, for the people.
    
      Sallen, Sallen, Seymour & Sallen, for defendant on appeal.
    Before: N. J. Kaufman, P. J., and Beasley and P. R. Mahinske, JJ.
    
      
       Circuit judge, sitting on the Court of Appeals by assignment.
    
   Per Curiam.

We agree with the dissent that the issues raised concerning the plea-taking are without merit.

For the reasons delineated in People v Walter Johnson, we decline to find that the felony-firearm statute is unconstitutional as applied in this case.

Affirmed.

N. J. Kaufman, P. J.

(dissenting). On March 29, 1977, defendant pled guilty to one count of armed robbery, MCL 750.529; MSA 28.797, and one count of possession of a firearm in the commission of a felony, MCL 750.227(b); MSA 28.424(2). On April 11, 1977, defendant was sentenced to a term of from 12 to 40 years imprisonment on the armed robbery count and to a mandatory two-year term of imprisonment on the "felony-firearm” count, to run consecutively. Defendant appeals as of right.

On appeal, defendant raises three issues, two of which pertain to the guilty plea procedure itself. They have been carefully considered and are of no merit. The third presents a more troubling issue: Does double jeopardy bar conviction for possession of a firearm during the commission of a felony, where the felony is armed robbery, and a firearm was, in fact, used?

It appears that the most prudent method of dealing with the felony-firearm issue is to evaluate each case on its own facts. In this case, the pertinent portion of the information reads as follows:

’’COUNT I
* * * did assault the above-named COMPLAINANT while armed with a dangerous weapon or an article used or fashioned in a manner to lead the person so assaulted to reasonably believe it to be a dangerous weapon, to-wit: a handgun and did then and there feloniously rob, steal and take from the person of said COMPLAINANT, or in his presence, United States Currency and an 1969 Cadillac, automobile Contrary to Sec. 750.529, M.C.L.A.
’’COUNT II
" * * * did then and there carry or have possession of a firearm, to-wit: a handgun in the commission or attempt to commit a felony to-wit: Robbery Armed, Contrary to M.C.L.A. 750.227b.” (Emphasis added.)

Thus, to satisfy its burden of proof as to Count I, the prosecution has to prove all of the elements that constitute common-law robbery and the added element that defendant was armed with a handgun when he robbed the complainant, as alleged in the information. To satisfy its burden of proof as to Count II, the prosecution has to prove that defendant was armed with a handgun at the time he committed a felony, the armed robbery of complainant. Clearly, the prosecutor’s task regarding Count I is identical to its task regarding Count II.

To convict defendant twice on separate counts involving identical proofs violates the prohibition against double jeopardy embodied in the United States Constitution and the Michigan Constitution. Not only would defendant be subject to the collateral consequences of multiple convictions but he would also be subject to multiple punishment for the same offense. Such a result cannot be constitutionally condoned. Simpson v United States, 435 US 6; 98 S Ct 909; 55 L Ed 2d 70 (1978), Jeffers v United States, 432 US 137; 97 S Ct 2207; 53 L Ed 2d 168 (1977), North Carolina v Pearce, 395 US 711; 89 S Ct 2072; 23 L Ed 2d 656 (1969), People v Stewart (On Rehearing), 400 Mich 540; 256 NW2d 31 (1977), People v Martin, 398 Mich 303; 247 NW2d 303 (1976).

This formulation does raise two potential problems which merit discussion. First, my decision would appear to ignore the clear intent of the Legislature. However, the intent of the Legislature cannot override the mandates of the United States Constitution and the Michigan Constitution. The Legislature cannot sanction double convictions and double punishments for the same crime by saying "We intend it so”.

It should be noted that it would have been easy for the Legislature to make the possession of a firearm while committing a felony an aggravated circumstance to be applied in sentencing an offender for the felony. See e.g., MCL 750.529; MSA 28.797. However, I would strongly caution against upholding the "felony-firearm” law solely because the result could be achieved in another manner. This Court would then be in the position of disregarding its duty of judicial review in constitutional cases.

The second potential problem is whether or not defendant waived his right to double jeopardy protection by pleading guilty to both offenses. I conclude that he did not. People v Alvin Johnson, 396 Mich 424; 240 NW2d 729 (1976).

Since I find that defendant’s guarantees of protection against double jeopardy were violated in this case, I would vacate defendant’s plea of guilty on the "felony-firearm” count and order that charge dismissed and affirm defendant’s plea of guilty on the armed robbery count. 
      
      
        People v Walter Johnson, 85 Mich App 654; 272 NW2d 605 (1978).
     
      
       MCL 750.227b; MSA 28.424(2).
     
      
       In pertinent part, " * * * [N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb * * * ”, US Const, Am V.
     
      
       In pertinent part, "No person shall be subject for the same offense to be twice put in jeopardy”. Const 1963, art 1, § 15.
     
      
       Multiple convictions may be a factor in parole consideration; they certainly enhance the punishment meted out if a defendant is subsequently found to be an habitual offender.
     
      
       In pertinent part, "If an aggravated assault or serious injury is inflicted by any person while committing an armed robbery, as defined in this section, the sentence shall be not less than 2 years’ imprisonment in the state prison.”
     