People v. Berry

272 N.W.2d 604, 85 Mich. App. 764, 1978 Mich. App. LEXIS 2457

Opinions

Per Curiam.

Defendant pled guilty to robbery armed, MCL 750.529; MSA 28.797, and possession of a firearm in the commission of a felony, MCL 750.227b; MSA 28.424(2).

Defendant contends that the trial court erred in denying defendant’s motion to withdraw his plea because there was an inadequate factual basis. We find that the proper factual basis was established and that the trial court did not err.

However, we do not believe defendant’s conviction under the felony-firearm statute is constitutionally valid. See Wayne County Prosecutor v Recorder’s Court Judge, 85 Mich App 727; 272 NW2d 587 (1978), People v Mitchell, 85 Mich App 757; 272 NW2d 601 (1978) (N. J. Kaufman, J., dissenting), People v Gerald Hughes, 85 Mich App 8; 270 NW2d 692 (1978) (D. F. Walsh, J., dissenting). Though we find the robbery armed charge a necessarily included offense of the felony-firearm charge, we choose to vacate the conviction under the felony-firearm statute and affirm the robbery armed conviction. Wayne County Prosecutor v Recorder’s Court Judge, supra.

Affirmed in part; reversed in part.