People v. Luster

292 N.W.2d 697, 96 Mich. App. 89, 1980 Mich. App. LEXIS 2533

Opinion

Per Curiam.

Defendant entered a plea of guilty in Wayne Circuit Court case #78-819921-FR for armed robbery, MCL 750.529; MSA 28.797, and. felony firearm, MCL 750.227b; MSA 28.424(2). At the same time, he also entered a plea of guilty in case #78-820267-FR to armed robbery and felony-firearm. These charges arose out of separate incidents. Defendant was sentenced to concurrent sentences of 10 to 25 years for armed robbery and to a mandatory five-year term as a second offender under the felony-firearm statute. Defendant appeals as of right.

Defendant contends that he should not be subject to the five-year mandatory term as a second offender for felony-firearm because both pleas were taken on the same day. The pertinent portion of the statute, MCL 750.227b; MSA 28.424(2), provides:

"Sec. 227b. (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 2 years. Upon a second conviction under this section, the person shall be imprisoned for 5 years. Upon a third or subsequent conviction under this section, the person shall be imprisoned for 10 years.”

The defendant was charged with and stood convicted of two separate violations of felony-firearm, and so became subject to the five-year mandatory term. The fact that his pleas were entered on the same day does not alter the result which the legislature plainly intended. See People v Barrett, 93 Mich App 808; 287 NW2d 348 (1979), and People v Willis, 95 Mich App 32; 290 NW2d 82 (1980).¹

The defendant’s argument that conviction of armed robbery and felony-firearm violates the provision against double jeopardy is without merit. Wayne County Prosecutor v Recorder’s Court Judge, 406 Mich 374; 280 NW2d 793 (1979).

Affirmed.

1 We disagree with footnote 3 of People v Barrett, supra, which concludes that a ten-year sentence for "a third or subsequent conviction” can only be imposed if that third conviction "follows or succeeds” the former, i.e., that it must occur at a later time. This is a tortured reading of a plainly-stated, straightforward legislative directive: that one who has a third, fourth, fifth, sixth, etc. conviction is subject to a mandatory ten-year term. Thus, had defendant entered a plea to three separate charges of felony-firearm at the same time, the trial court would have been required to impose a ten-year sentence under MCL 750.227b; MSA 28.424(2).