People v. Mitchell

575 N.W.2d 283, 456 Mich. 693, 1998 Mich. LEXIS 1294

Opinions

Weaver, J.

Defendant was charged with receiving or concealing stolen firearms or ammunition¹ and possession of a firearm during the commission of a felony (felony-firearm).² Defendant brought a motion to dismiss the felony-firearm charge on double jeopardy grounds. The trial court granted the motion, holding that it would violate the Double Jeopardy Clause if he were prosecuted under both statutes. Trial was stayed while the prosecutor appealed. The Court of Appeals issued an opinion affirming the trial court’s ruling.³ We reverse and remand.

The sole question before us is whether it is a violation of the United States and Michigan Constitutions’ prohibition against double jeopardy⁴ for defendant to be prosecuted for felony-firearm when the predicate felony is receiving or concealing a stolen firearm or ammunition.

There are various protections flowing from the double jeopardy guarantee of the United States and Michigan Constitutions: it precludes a second prosecution for the same offense after acquittal or conviction, and also protects against multiple punishments for the same offense. It is this last protection — protection against multiple punishments for the same offense — with which we are concerned today. This protection is designed to ensure that courts confine their sentences to the limits established by the Legislature. People v Sturgis, 427 Mich 392; 397 NW2d 783 (1986).

Where multiple punishment is involved, the Double Jeopardy Clause acts as a restraint on the prosecutor and the Courts, not the Legislature. Brown v Ohio, 432 US 161; 97 S Ct 2221; 53 L Ed 2d 187 (1977). Where “a legislature specifically authorizes cumulative punishment under two statutes, regardless of whether those two statutes proscribe the ‘same’ conduct under Blockburger,

Footnotes

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[5] a court’s task of statutory construction is at an end and the prosecutor may seek and the trial court or jury may impose cumulative punishment under such statutes in a single trial.” Missouri v Hunter, 459 US 359, 368; 103 S Ct 673; 74 L Ed 2d 535 (1983). Where the issue is one of multiple punishment rather than successive trials, the double jeopardy analysis is whether there is a clear indication of legislative intent to impose multiple punishment for the same offense. If so, there is no double jeopardy violation. People v Robideau, 419 Mich 458, 469; 355 NW2d 592 (1984). 1 Gillespie, Michigan Criminal Law & Procedure (2d ed), § 102, p 285.

Thus, we need only determine whether the Legislature has authorized multiple punishments. To do so, we look to the subject, language, and history of the statutes. Robideau, supra at 486.

MCL 750.535b; MSA 28.803(2)⁶ regulates both stolen firearms and stolen ammunition, and punishes those who receive, conceal, store, barter, sell, dispose of, pledge, or accept as security for a loan either of these items. MCL 750.227b; MSA 28.424(2)⁷ creates a separate felony for those who possess a firearm while committing a felony.

MCL 750.227b; MSA 28.424(2) specifically excludes violations of four felonies — § 223 (unlawful sale of a firearm), § 227 (carrying a concealed weapon), § 227a (unlawful possession of a firearm by a licensee) and § 230 (alteration of identifying marks on a firearm). The Court of Appeals effectively held that this was not an exclusive list, and held that “mere possession of a weapon, without more, cannot serve as the predicate for a felony-firearm charge.” 220 Mich App 439, 443; 559 NW2d 439 (1996). We disagree with this reading of the felony-firearm statute. The Court of Appeals erred in reading in an exception that was not included in the statute by the Legislature.

This Court has previously discussed the history and legislative intent of the felony-firearm legislation. In People v Morton, 423 Mich 650, 656; 377 NW2d 798 (1985), this Court said that “it [is] clear that the Legislature intended, with only a few narrow exceptions, that every felony committed by a person possessing a firearm result in a felony-firearm conviction.” In People v Sturgis, supra at 407, we noted that “[t]he language and structure of the statute thus contain no indication that the Legislature intended that a felony-firearm offense was a sentence-enhancement statute which precluded the charging and conviction of separate offenses.” In Sturgis, supra at 407-408, this Court also concluded that “[t]he legislative history of the statute also reflects a commitment to reach all but the excepted felonies.”

In 1990, the Legislature amended the felony-firearm statute. It added to the list of excepted felonies § 223 (unlawful sale of a firearm) and § 230 (alteration of identifying marks on a firearm). 1990 PA 321. We find it significant that in this amendment the Legislature did not add the felony at question here today, § 535b, receiving or concealing stolen firearms or ammunition, to the list of excepted felonies. Nor did it add any concluding catch-all phrase such as to trigger an ejusdem generis analysis. Rather, the Legislature simply listed the four exceptions without using any language such as “or other similar statute” that would give a court an open door to expand the number of exceptions. The fact that such language was not included must be given meaning. That meaning is that the list of four exceptions is exclusive. We reject the reasoning of People v Walker, 167 Mich App 377, 385; 422 NW2d 8 (1988), that “the Legislature’s intent was to preclude a possession offense from serving as the underlying felony for felony-firearm.” This extrapolation from the list of exclusions in the felony-firearm statute is too broad, and reaches beyond the Legislature’s explicit provisions. We overrule People v Walker, supra, and its progeny to the extent that they are in conflict with our opinion today. We conclude that the Legislature’s intent in drafting the felony-firearm statute was to provide for an additional felony charge and sentence whenever a person possessing a firearm committed a felony other than those four explicitly enumerated in the felony-firearm statute.

We reverse the decision of the Court of Appeals, reinstate the charge against defendant, and remand for further proceedings.

Mallett, C.J., and Brickley, Boyle, and Taylor, JJ., concurred with Weaver, J.

1

MCL 750.535b; MSA 28.803(2).

2

MCL 750.227b; MSA 28.424(2).

3

220 Mich App 439; 559 NW2d 105 (1996).

4

US Const, Am V provides, in pertinent part: “nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb”; Const 1963, art 1, § 15 provides: “No person shall be subject for the same offense to be twice put in jeopardy.”

5 The Blockburger test says that “The applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not.” Blockburger v United States, 284 US 299, 304; 52 S Ct 180; 76 L Ed 306 (1932).

6

MCL 750.535b(2); MSA 28.803(2)(2) states, in pertinent part:

A person who receives, conceals, stores, barters, sells, disposes of, pledges, or accepts as security for a loan a stolen firearm or stolen ammunition, knowing that the firearm or ammunition was stolen, is guilty of a felony, punishable by imprisonment for not more than 10 years or by a fine of not more than $5,000.00, or both.

7

The felony firearm statute, MCL 750.227b(l); MSA 28.424(2)(1) provides:

A person who carries or has in his or her possession a firearm when he or she commits or attempts to commit a felony, except a violation of section 223 [unlawful sale of a firearm], section 227 [carrying a concealed weapon], 227a [unlawful possession of a firearm by a licensee] or 230 [alteration of identifying marks on a firearm], is guilty of a felony, and shall be imprisoned for 2 years.