People v. Mitchell

272 N.W.2d 601, 85 Mich. App. 757, 1978 Mich. App. LEXIS 2456

• Court: Michigan Court of Appeals
• Decided: September 20, 1978
• Docket: Docket 77-4057
• Status: Published

Opinions

Per Curiam.

Defendant attempted to plead guilty to a two-count information involving a charge of assault with intent to rob while armed in violation of MCL 750.89; MSA 28.284, and possession of a firearm while in commission of or attempting to commit a felony in violation of MCL 750.227b; MSA 28.424(2).

The trial judge rejected the plea as being factually insufficient. The case then went to trial and the jury convicted defendant under both counts. After sentence to the mandatory two years under felony-firearm and, thereafter, not less than five nor more than ten years under assault with intent to rob while armed, defendant appeals as of right.

We find that defendant’s claims of error are without merit. Three issues warrant comment.

We reject defendant’s claim that the felony-firearm statute is an unconstitutional violation of the Federal and state double jeopardy clauses as applied to him in this case for the reasons set forth in People v Walter Johnson.1

We agree with the dissent that the prosecutor’s remarks, as quoted in the dissent, were improper, but that failure to object during trial precludes reversal now.²

We also agree with the dissent that failure in the trial court to request an instruction regarding lesser included offenses of assault with intent to rob while armed precludes reversal of the conviction and grant of a new trial.

As indicated, we believe defendant’s other claims of error are without sufficient merit to reverse defendant’s convictions.

Affirmed.

1 85 Mich App 654; 272 NW2d 605 (1978).

2 People v Hall, 396 Mich 650; 242 NW2d 377 (1976).