People v. Powell

282 N.W.2d 803, 90 Mich. App. 273, 1979 Mich. App. LEXIS 2156

Opinions

D. E. Holbrook, P.J.

Defendant pled guilty May 24, 1977, to charges of armed robbery, MCL 750.529; MSA 28.797, and possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). He was sentenced to from 20 to 39 years on the robbery charge and to the mandatory consecutive two-year possession term. The defendant appeals of right, alleging that the factual basis elicited during his plea proceedings does not support his conviction for possession of a firearm and that his conviction on both counts violates the constitutional prohibition of double jeopardy.

The testimony elicited in support of the defendant’s plea indicates that he was sentenced under MCL 750.227b as a result of his codefendant’s possession of a firearm. We agree with the holding of People v Walter Johnson, 85 Mich App 654; 272 NW2d 605 (1978), that the language of the felony-firearm statute clearly contemplates "personal” possession of a firearm by the defendant.

Further, we find that it would be necessary to prove the same facts to convict defendant under the armed robbery charge and to convict defendant under the possession of a firearm during the commission of a felony charge. Conviction of both offenses offends the double jeopardy provision of the Federal and state constitutions prohibiting being twice convicted and punished for the same offense. See People v Walter Johnson, supra (dissent by Kaufman, J.) and People v Chamblis, 88 Mich App 734; 279 NW2d 541 (1978).

For these' reasons, defendant’s conviction under MCL 750.227b is reversed. Defendant’s conviction for armed robbery under MCL 750.529 is affirmed.

D. E. Holbrook, Jr., J., concurred.