Wayne County Prosecutor v. Recorder's Court Judge

280 N.W.2d 793, 406 Mich. 374

Opinions

Coleman, C.J.

(for reversal). Leave to appeal was sua sponte granted in these cases¹ to resolve a substantial conflict among our lower courts as to the constitutionality of Michigan’s felony-firearm statute, MCL 750.227b; MSA 28.424(2), which states:

"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 [carrying a concealed weapon] or section 227a [unlawful possession of a weapon by a licensee], is guilty of a felony and shall be imprisoned for 2 years.”

"The term of imprisonment prescribed by this section shall be in addition to the sentence imposed for the conviction of the felony or the attempt to commit the felony, and shall be served consecutively with and preceding any term of imprisonment imposed for the conviction of the felony or attempt to commit the felony.”

In Wayne County Prosecutor v Recorder’s Court Judge (People v Alexander), the evidence indicated that the defendant, Annette Gail Alexander, shot and killed a man with a shotgun. She was convicted in a single trial of second-degree murder and felony-firearm. The trial judge sentenced her on the murder conviction, but refused to impose the mandatory two-year sentence for felony-firearm because he believed to do so would violate constitutional prohibitions against double punishment. In People v Brintley, the evidence indicated that defendant carried and exhibited a handgun while he robbed a woman. He was convicted in a single trial of armed robbery and felony-firearm.² The trial judge sentenced him on the armed robbery conviction and also imposed the mandatory two-year consecutive sentence for felony-firearm.³

The question presented is whether separate convictions and consecutive sentences for both a felony and for felony-firearm in cases such as these violate the Michigan and United States constitutional prohibition against being twice placed in jeopardy for the same offense.⁴

The Court of Appeals concluded in both of these cases that the Michigan and the United States Constitutions were violated, and therefore vacated the defendants’ respective convictions for felony-firearm.⁵

We reverse, reinstate the convictions and remand People v Alexander to the trial court for imposition of the mandatory two-year consecutive sentence for felony-firearm.

I

Although different panels of the Court of Appeals have reached widely divergent conclusions as to the constitutionality of the felony-firearm statute, almost all of them seem to agree that the Legislature intended to create a separate crime distinct from the felony or attempted felony and intended that cumulative punishment should be imposed.⁶ We agree.

The statute decrees that any person carrying or possessing a firearm during a felony or attempted felony "is guilty of a felony” and shall be imprisoned for two years. This two-year sentence must be imposed "in addition to” the sentence for the felony or attempted felony and must be served "consecutively” to and "preceding” the sentence for that crime. (Emphasis added.)

This language is markedly different from the language used by the Legislature in those statutes which are merely sentence enhancement statutes. For example, the habitual offender statute regarding second offenders states:

"A person, who after having been convicted within this state of a felony, or an attempt to commit a felony, or, under the laws of any other state, government or country, of a crime which if committed within this state, would be a felony, commits any felony within this state, is punishable upon conviction as follows: If the subsequent felony is such that, upon a first conviction the offender would be punishable by imprisonment for any term less than his natural life, then such person may be placed on probation or sentenced to imprisonment for a term not more than 1-1/2 times the longest term prescribed for a first conviction of such offense or for any lesser term in the discretion of the court; if the subsequent felony is such that, upon a first conviction the offender might be punished by imprisonment for life then such person may be placed on probation or sentenced to imprisonment for life or for any lesser term in the discretion of the court.”⁷

There is no language in this statute indicating that the defendant shall be deemed guilty of a separate felony or that a consecutive sentence is to be imposed. The one sentence originally imposed for the felony which gives rise to the habitual offender proceedings is simply increased.

The language of the felony-firearm statute is also significantly different from the language used by the Legislature in those statutes which establish mandatory minimum sentences. For example, the armed robbery statute states;

"Any person who shall assault another, and shall feloniously rob, steal and take from his person, or in his presence, any money or other property, which may be the subject of larceny, such robber being armed with a dangerous weapon, or any article used or fashioned in a manner to lead the person so assaulted to reasonably believe it to be a dangerous weapon, shall be guilty of a felony, punishable by imprisonment in the state prison for life or for any term of years. If an aggravated assault or serious injury is indicted by any person while committing an armed robbery as defined in this section, the sentence shall be not less than 2 years’ imprisonment in the state prison.”8 (Emphasis added.)

Again, there is no indication of an intent to establish a separate felony or require a consecutive sentence. The sentencing judge is merely required to impose a single sentence with a minimum term of at least two years.

The language employed by the Legislature in the felony-firearm statute, especially when analyzed against the backdrop of the sentence enhancement and mandatory minimum sentencing provisions quoted above, leaves no doubt that the Legislature intended to make the carrying of a weapon during a felony a separate crime and intended that cumulative penalties should be imposed. The Legislature has clearly expressed its judgment that carrying a firearm during any felony which may, but need not necessarily, involve the carrying of a firearm, entails a distinct social harm inimical to the public health, safety and welfare which deserves separate treatment. In order to deter the use of guns, the Legislature has chosen to create a separate crime.

We are thus squarely faced with the question of whether separate convictions and cumulative punishments for both a felony and for felony-firearm violates the Double Jeopardy Clause of the United States or Michigan Constitutions.

II

In Brown v Ohio, 432 US 161; 97 S Ct 2221; 53 L Ed 2d 187 (1977), the United States Supreme Court stated that the Double Jeopardy Clause does not substantively restrict the legislative branch:

"Because it was designed originally to embody the protection of the common-law pleas of former jeopardy, see United States v Wilson, 420 US 332, 339-340 [95 S Ct 1013; 43 L Ed 2d 232] (1975), the Fifth Amendment double jeopardy guarantee serves principally as a restraint on courts and prosecutors. The legislature remains free under the Double Jeopardy Clause to deñne crimes and ñx punishments; but once the legislature has acted courts may not impose more than one punishment for the same offense and prosecutors ordinarily may not attempt to secure that punishment in more than one trial.” Brown, supra, 165. (Emphasis added.)

Then, after recognizing that the Double Jeopardy Clause protects against multiple punishments for the same offense, the Court stated that in the single prosecution context (such as that in the cases at bar), the clause only serves to ensure that the defendant is not subjected to more punishment than the legislative branch has authorized:

"The Double Jeopardy Clause 'protects * * * against multiple punishments for the same offense.’ North Carolina v Pearce, 395 US 711, 717 [89 S Ct 2072; 23 L Ed 2d 656] (1969). Where consecutive sentences are imposed at a single criminal trial, the role of the constitutional guarantee is limited to assuring that the court does not exceed its legislative authorization by imposing multiple punishments for the same offense. See Gore v United States, 357 US 386 [78 S Ct 1280; 2 L Ed 2d 1405] (1958); Bell v United States, 349 US 81 [75 S Ct 620; 99 L Ed 905] (1955); Ex parte Lange, [85 US] 18 Wall 163 [21 L Ed 872] (1874).” Brown, supra, 165. (Emphasis added.)

The Court’s citations to Gore v United States, 357 US 386; 78 S Ct 1280; 2 L Ed 2d 1405 (1958), Bell v United States, 349 US 81; 75 S Ct 620; 99 L Ed 905 (1955), and Ex parte Lange, 85 US (18 Wall) 163; 21 L Ed 872 (1874), in support of this proposition are illuminating. In Gore, the Court rejected a defendant’s double jeopardy challenge to his multiple convictions and consecutive sentences arising from a single sale of narcotics. Mr. Justice Frankfurter, speaking for the Court, concluded his opinion by stating:

"In effect, we are asked to enter the domain of penology, and more particularly that tantalizing aspect of it, the proper apportionment of punishment. Whatever views may be entertained regarding severity of punishment, whether one believes in its efficacy or its futility, * * * these are peculiarly questions of legislative policy.” Gore, supra, 393. (Emphasis added.)

Even Mr. Chief Justice Warren, in dissent, stated:

"The problem of multiple punishment is a vexing and recurring one. It arises in one of two broad contexts: (a) a statute or a portion thereof proscribes designated conduct, and the question is whether the defendant’s conduct constitutes more than one violation of this proscription. Thus, murdering two people simultaneously might well warrant two punishments but stealing two one-dollar bills might not. (b) Two statutes or two portions of a single statute proscribe certain conduct, and the question is whether the defendant can be punished twice because his conduct violates both proscriptions. Thus, selling liquor on a Sunday might warrant two punishments for violating a prohibition law and a blue law, but feloniously entering a bank and robbing a bank, though violative of two statutes, might warrant but a single punishment.

"In every instance the problem is to ascertain what the legislature intended.” Gore, supra, 393-394. (Emphasis added.)

In Bell, the Court began by stating:

"Once more it becomes necessary to determine 'What Congress has made the allowable unit of prosecution,’ United States v Universal CIT Credit Corp, 344 US 218, 221 [73 S Ct 227; 97 L Ed 260 (1952)], under a statute which does not explicitly give the answer.” Bell, supra, 81.

The defendant contended that his single act of simultaneously transporting two women across state lines for immoral purposes constituted a single offense and could not, as the lower courts had ruled, be the basis for cumulative punishments under separate counts of one indictment. The Court stated:

"The punishment appropriate for the diverse federal offenses is a matter for the discretion of Congress, subject only to constitutional limitations, more particularly the Eighth Amendment. Congress could no doubt make the simultaneous transportation of more than one woman in violation of the Mann Act liable to cumulative punishment for each woman so transported. The question is: did it do so?” Bell, supra, 82-83.

The Court went on to conclude that Congress had not expressed a clear intent to authorize multiple convictions and cumulative punishments, and that absent such a clear expression, "doubt will be resolved against turning a single transaction into multiple offenses”. Bell, supra, 84.

In Lange, the defendant had been convicted in a single proceeding of stealing United States mail bags. The punishment authorized by Congress for this offense was imprisonment for one year or a monetary fine. The trial judge sentenced the defendant to one year’s imprisonment and a monetary fine. After the defendant had paid the fine, the judge vacated the original sentence and resen-tenced him to one year’s imprisonment. The Supreme Court reversed and discharged the defendant on the ground that he had been twice punished for the same offense. The trial judge had exceeded his authority.

It is argued, however, that the rule articulated in Blockburger v United States, 284 US 299; 52 S ; 76 L Ed 306 (1932), requires that the felony-firearm statute be struck down as violative of the Double Jeopardy Clause.

In Blockburger, the Court stated:

"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 a fact which the other does not.” Blockburger, supra, 304.

It is contended on the basis of Jeffers v United States, 432 US 137; 97 S Ct 2207; 53 L Ed 2d 168 (1977), and Simpson v United States, 435 US 6; 98 S Ct 909; 55 L Ed 2d 70 (1978), that this rule is a constitutional test which must be satisfied in every case, despite the Court’s statement in Iannelli v United States, 420 US 770; 95 S Ct 1284; 43 L Ed 2d 616 (1975), that "[t]he test articulated in Block-burger v United States [citation omitted] serves [the] function of identifying congressional intent to impose separate sanctions for multiple offenses arising in the course of a single act or transaction”. Iannelli, supra, 785, fn 17.

We need not decide whether the Blockburger rule is a constitutional test, because even if it is, it is satisfied in these cases.

In applying the Blockburger rule, the United States Supreme Court has focused on the legal elements of the respective offenses, not on the particular factual occurrence which gives rise to the charges. Thus in Harris v United States, 359 US 19; 79 S Ct 560; 3 L Ed 2d 597 (1959), the Court affirmed multiple convictions and consecutive sentences for both purchasing narcotics from an unstamped package and receiving or concealing the same narcotics with knowledge that they had been unlawfully imported, despite the fact that both convictions were based on evidence of one act of possessing narcotics. Different statutory presumptions stemming from the proven fact of possession supplied the different legal elements of the two offenses. The Court stated:

"[T]he violation, as distinguished from the direct evidence offered to prove the violation, was distinctly different under each of the respective statutes.” Id., 23.

Similarly, in Iannelli v United States, the Court stated:

"In determining whether separate punishment might be imposed, Blockburger requires that courts examine the offenses to ascertain 'whether each provision requires proof of a fact which the other does not.’ Id., at 304. As Blockburger and other decisions applying its principle reveal, see, e.g., Gore v United States, 357 US 386 [78 S Ct 1280; 2 L Ed 2d 1405] (1958); American Tobacco Co v United States, 328 US 781, 788-789 [66 S Ct 1125; 90 L Ed 1575] (1946), the Court’s application of the test focuses on the statutory elements of the offense. If each requires proof of a fact that the other does not, the Blockburger test is satisfied, notwithstanding a substantial overlap in the proof offered to establish the crimes.” Iannelli, supra, 785, fn 17.

Looking only to the "statutory elements” of the offenses in the cases at bar, the Blockburger rule is satisfied.

In Wayne County Prosecutor v Recorder’s Court Judge, where the defendant was convicted of both second-degree murder and felony-firearm, the prosecution was legally required, in order to convict the defendant of second-degree murder, to prove a homicide and malice aforethought — neither of which is legally required in order to convict the defendant of felony-firearm. On the other hand, in order to convict the defendant of felony-firearm, the prosecution was legally required to prove first, that the defendant carried or possessed a firearm —an element which is not necessary to secure a conviction for second-degree murder — and second, that the firearm was carried or possessed during the commission of any felony or attempted felony. The prosecution was not legally required to prove second-degree murder. It could have secured a conviction by proving any felony other than carrying a concealed weapon or unlawful possession of a weapon. Although factually in this particular case the prosecution relied bn proof of the murder in order to secure the felony-firearm conviction, legally it was not required to do so. Any proper felony would have sufficed. It is possible, legally, to commit felony-firearm without committing second-degree murder. Despite a "substantial overlap in the proof offered to establish the crimes”, Iannelli, supra, 785, fn 17, "the violation, as distinguished from the direct evidence offered to prove the violation, was distinctly different under each of the respective statutes”. Harris, supra, 23. Legally, "each provision requires proof of a fact that the other does not”. Blockburger, supra, 304.

The same rationale applies to People v Brintley, in which the defendant was convicted of both felony-firearm and armed robbery. In order to convict the defendant of armed robbery, the prosecution was legally required to prove an assault, a taking and an intent to permanently deprive the owner of his or her property — none of which are legally required to convict the defendant of felony-firearm. On the other hand, in order to convict the defendant of felony-firearm, the prosecution was legally required to prove two things: first, that the defendant carried or possessed a firearm — a fact which is not necessary to secure a conviction for armed robbery (any "dangerous weapon” or "article” used or fashioned so as to lead the victim to believe it is a dangerous weapon will satisfy the "armed” requirement of the armed robbery statute);⁹ second, that the firearm was carried or possessed during the course of any felony or attempted felony. The prosecution was not legally required to prove armed robbery. Any proper felony would have sufficed. Each of these statutes legally requires proof of a fact which the other does not. Proof of felony-firearm does not necessarily prove armed robbery. And, as in Harris v United States, supra, the mere fact that one factual occurrence, there the possession of narcotics and here the possession of a gun, is employed to supply proof of an element of two distinct crimes does not violate the Blockburger rule. A substantial overlap of factual proofs is permissible. Iannelli, supra.

A similar rationale was used by the United States Court of Appeals for the Eighth Circuit to uphold a state defendant’s multiple convictions and consecutive sentences for both robbery and using a firearm in the commission of a felony. Kowalski v Parratt, 533 F2d 1071 (CA 8, 1976), cert den 429 US 844; 97 S Ct 125; 50 L Ed 2d 115 (1976). The Court stated:

"Although the appellant assumes that count II [felony-firearm] required proof of the robbery alleged in count I, that is not the case. The weapons statute is satisfied by proof that a weapon was possessed or used during any felony.” Id., 1073. (Emphasis added.)¹⁰

III

In some cases this Court has focused on the factual proofs involved and has concluded that both of two convictions and their attendant punishments cannot stand. See, for example, People v Cook, 236 Mich 333; 210 NW 296 (1926), People v Martin, 398 Mich 303; 247 NW2d 303 (1976), and People v Stewart (On Rehearing), 400 Mich 540; 256 NW2d 31 (1977). However, a common thread running through these cases is that none of them involved statutes which evidenced a clear legislative intent to authorize separate convictions and cumulative punishments based on one occurrence.

In People v Cook, supra, the defendant was convicted of possessing intoxicating liquor pursuant to a single statute which prohibited all of the following activities with respect to such liquor: manufacturing; selling; keeping for sale; giving away; bartering; furnishing; transporting; possessing; or keeping a place where such liquor is (a) manufactured; (b) sold; (c) stored; (d) possessed; (e) given away; (f) furnished. There was no clear indication in this statute that the Legislature intended to authorize separate convictions and cumulative punishment for each of these activities based on one factual occurrence. After the defendant had served the sentence for his possession conviction, he was retried and reconvicted pursuant to the same statute for transporting the same liquor. Factually, both of these convictions were based on the same act of transporting one load of liquor to one place. The Court interpreted the statute as follows:

"If a person does a single one of the above stated things he violates this law, and is subject to its penalty; but because the doing of one of these things necessarily involves the doing of one, many, or all of the others, it cannot be said that for the single act he is liable to a punishment many times greater than the legislature prescribed. The whole statute makes a single crime and its clear purpose and intent is to forbid and punish every conceivable act which has to do with intoxicating liquor.” Id., 336.

In this context the Court then declared:

" 'It is elementary that a prosecution and conviction or acquittal of any part of a single crime bars any further prosecution for an offense made up of the whole or part of the same crime.’ ” Id., 336-337.

The Court analyzed the facts of the case and stated:

"[W]e cannot conclude other than that the conviction of defendant for possession bars his subsequent prosecution for transporting the same liquor. It would have been physically impossible to transport it without possessing it, and under the facts in the instant case, it could not have been possessed by the defendant in the automobile in front of the house on John street where the officers were stationed, and where it was taken from him, without it having been transported to that point. Proof of the facts stated would necessarily have brought conviction for either possession or transporting.” Id., 336.

The defendant’s conviction for transporting the liquor was reversed and he was discharged.

In People v Martin, supra, the defendant had been convicted in a single trial of delivering and possessing the same heroin. Factually, both convictions were based on proof of one act of possession incident to delivery. The defendant argued on appeal that the multiple convictions were invalid because the Legislature did not intend by enactment of the possession and delivery statutes to authorize a separate conviction for possession when the only possession involved was possession incident to delivery and argued that such multiple convictions violated the Double Jeopardy Clauses of the Michigan and United States Constitutions. The possession and delivery statutes did not evidence a clear legislative intent to authorize multiple convictions.¹¹ The Court held that because, factually, the possession giving rise to the possession conviction was the same possession as that involved in the delivery conviction, both convictions could not stand:

"Testimony at trial indicated that a police informant brought 1/2 ounce of heroin directly from defendant. The defendant personally cut the heroin and delivered it to the informant. Defendant was charged in a two-count information with (1) delivery and (2) possession of a certain 15.62 grams of heroin. There is no dispute over the fact that it was the same 15.62 grams of heroin in each count.

"Possession of the heroin present in this case was that necessary to its delivery.

"On the evidence adduced at this trial, there is no doubt that unlawful possession was a lesser included offense of delivery.

"When the jury found defendant guilty of unlawful delivery of this heroin on the evidence in this record they necessarily found him in possession of it.

"A defendant may be charged and tried for each act that constitutes a separate crime. However, when tried for an act which includes lesser offenses, if the jury finds guilt of the greater, the defendant may not also be convicted separately of the lesser included offense.” Id., 307-309.

The Court relied inter alia on People v Cook, supra, and on O’Clair v United States, 470 F2d 1199 (CA 1, 1972), cert den 412 US 921; 93 S Ct 2741; 37 L Ed 2d 148 (1973). O’Clair, like Cook, involved multiple convictions based on a single statute which did not clearly evidence a legislative intent to authorize multiple convictions based on one factual occurrence.¹² Indeed, the Court in O’Clair concluded as a matter of statutory interpretation that Congress had not intended to authorize multiple convictions.

In People v Stewart, supra, the Court, relying on People v Martin, supra, reached the same result in a nearly identical case involving sale and possession of heroin. The only significant difference between the two cases was that the Stewart case involved the predecessor statutes of the ones involved in Martin.13 There was again no clear expression in these predecessor statutes of an intent to authorize separate convictions and cumulative punishments.¹⁴

These cases stand for the proposition that where the Legislature has not clearly authorized multiple convictions and cumulative punishments, both of two convictions and their attendant punishments cannot stand. They are inapposite because the Legislature has clearly expressed in the felony-firearm statute an intent to authorize multiple convictions and cumulative punishments.

IV

We reverse the Court of Appeals in each case and reinstate the defendants’ respective felony-firearm convictions. We remand Wayne County Prosecutor v Recorder’s Court Judge (In the Matter of People v Annette Gail Alexander) to the trial court for imposition of the mandatory two-year consecutive sentence for felony-firearm.

Williams, Fitzgerald, and Ryan, JJ., concurred with Coleman, C.J.

Kavanagh, J.

(to affirm Court of Appeals). Michigan’s felony-firearm statute, MCL 750.227b; MSA 28.424(2), authorizes the imposition of separate criminal sanctions for committing a felony and for committing it while in possession of a firearm. The question before us is whether by enacting this provision the Legislature has impermissibly authorized double punishment for the same offense.

We hold that the substantive offense and the underlying felony are the "same” for double jeopardy purposes, and that conviction of both violates the Michigan and Federal double jeopardy provisions. Const 1963, art 1, § 15; US Const, Am V. We also hold that the expressed legislative intent to authorize separate convictions and punishment for the two offenses does not avoid violation of these constitutional guarantees.

I

The felony-firearm statute states:

"(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 [carrying a concealed weapon] or section 227a [unlawful possession of a weapon by a licensee], is guilty of a felony, and shall be imprisoned for 2 years. * * *

"(2) The term of imprisonment prescribed by this section shall be in addition to the sentence imposed for the conviction of the felony or the attempt to commit the felony, and shall be served consecutively with and preceding any term of imprisonment imposed for the conviction of the felony or attempt to commit the felony.”

Annette Gail Alexander killed a man with a shotgun. She was convicted of both second-degree murder, MCL 750.317; MSA 28.549, and possessing a firearm while committing the murder. MCL 750.227b; MSA 28.424(2). She received a 2-1/2- to 10-year prison sentence for the murder count, but the trial court refused to impose the mandatory 2-year sentence. for the felony-firearm conviction, stating that to do so would punish the defendant twice for the same offense. The Wayne County Prosecutor filed a complaint for superintending control, or alternatively, application for leave to appeal with the Court of Appeals.

In an opinion released September 20, 1978, the Court of Appeals vacated defendant Alexander’s felony-firearm conviction on the ground that it violated her right to be free from double punishment. Wayne County Prosecutor v Recorder’s Court Judge, 85 Mich App 727; 272 NW2d 587 (1978).

Curtis Brintley exhibited a handgun while robbing a woman. He received a five- to ten-year sentence upon conviction for armed robbery, MCL 750.529; MSA 28.797, and a two-year consecutive sentence upon conviction of the felony-firearm provision. On appeal as of right to the Court of Appeals, that Court vacated his felony-firearm conviction, again reasoning that defendant had been twice punished for the same offense. People v Brintley, 85 Mich App 714; 272 NW2d 582 (1978).

We agree with the Court of Appeals disposition of these two cases, and affirm.

II

There is no doubt that in enacting the felony-firearm statute the Legislature intended to create an offense distinct from the underlying felony. The statute provides that possessing a firearm during the commission of a felony is a felony in and of itself. Subd (1). The mandatory sentence provision also states that the felony-firearm sentence is to run before and consecutive to the sentence imposed for the underlying felony. Subd (2). When comparing the language used in this statute to that employed in sentence enhancement provisions¹ or ihinimum sentence provisions,² it is clear neither of these alternatives was intended.

III

Because this statute creates a separate and distinct offense, we must determine whether it is the "same” offense as the underlying felony. If it is, punishment for both violates our constitutional prohibitions against double jeopardy:

"[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb.” US Const, Am V.

"No person shall be subject for the same offense to be twice put in jeopardy.” Const 1963, art 1, § 15.

A

Blockburger v United States, 284 US 299; 52 S Ct 180; 76 L Ed 306 (1932), states the rule for determining whether two offenses are the "same” for Federal double jeopardy purposes:

"Each of the offenses created requires proof of a different element. 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 a fact which the other does not.” Id., 304.

This test focuses upon the statutory elements of the two offenses, not upon the evidence introduced at trial to establish their commission. Iannelli v United States, 420 US 770, 785, fn 17; 95 S Ct 1284; 43 L Ed 2d 616 (1975).

Under Blockburger a necessarily included lesser offense, as we have defined it in People v Ora Jones, 395 Mich 379; 236 NW2d 461 (1975), is the "same” offense as the greater. The greater offense contains all of the legal elements contained in the lesser, plus more. Each provision does not require "proof of a fact which the other does not”. Because it is legally impossible to commit the greater without committing the lesser, they are the "same” offense. The lesser is logically included in the greater.

An offense can also be necessarily included in another if the Legislature decides to so structure the law. This is true whenever a statute provides that one crime is committed only as and when another crime is committed. Such an offense would be necessarily included not as a matter of logic, but on account of legislative determination. Such an offense would also be the "same” for double jeopardy purposes under Blockburger. .

The "logically” included offense principle was employed by the United States Supreme Court in Brown v Ohio, 432 US 161; 97 S Ct 2221; 53 L Ed 2d 187 (1977), to preclude separate convictions of both joyriding and auto theft. The "legislatively determined” included offense principle was employed by the United States Supreme Court in Harris v Oklahoma, 433 US 682; 97 S Ct 2912; 53 L Ed 2d 1054 (1977), to preclude conviction of both felony murder and the underlying felony:

"When as here, conviction of a greater crime, murder, cannot be had without conviction of the lesser crime, robbery with firearms, the Double Jeopardy Clause bars prosecution for the lesser crime after conviction of the greater one.”

See, also, Johnson v Hampton, 434 US 947; 98 S Ct 471; 54 L Ed 2d 307 (1977) (felony-murder and arson).

Looking only to the statutory elements, the prosecutor asserts here that because any felony may be the underlying crime in a felony-firearm prosecution, there is no one specific felony which is necessarily included by statutory mandate.

We are not persuaded.

Every prosecution for felony-firearm must charge 1) possession of a firearm, 2) during the commission of a specified felony. Cf. People v Westerberg, 274 Mich 647; 265 NW 489 (1936). Only proof of the underlying felony charged will supply the second element which the Legislature has determined to be necessary to effect a felony-firearm conviction.

This does not, as the prosecutor suggests, do violence to Blockburger by converting the test into a factual one. The focus is still on the legal elements, and it is the specification of the felony in the charge that has the effect of making it a necessarily included offense under the law.

We are satisfied that this conclusion comports with the reasoning of the United States Supreme Court in Harris, supra. 3

B

Michigan precedent is in line with this result.

In People v Stewart (On Rehearing), 400 Mich 540; 256 NW2d 31 (1977), this Court was unanimous in deciding that conviction of both the possession and the sale of heroin is improper when, on the facts of the case, the possession and sale are but one indivisible criminal act. In Stewart, the possession was the " 'necessary’ prerequisite” to the commission of the sale, and when the jury found the defendant guilty of one, it necessarily also found him guilty of the other. Id., 548-549. See, also, People v Martin, 398 Mich 303; 247 NW2d 303 (1976).

The logic of Martin and Stewart of permitting only one conviction applies with equal force here. When the juries found defendants in these cases guilty of the possession charge, they necessarily found them guilty of the underlying felony. The felony here was the " 'necessary’ prerequisite” to the felony-firearm charge, and on the facts, constituted one indivisible criminal act. This renders them the "same” offense, and under the authority of Stewart and Martin, one conviction is all that may be had. Stewart, supra, 548-549; Martin, supra, 307-310.

IV

We are asked to find the necessarily included offense principle applied in Brown and Harris distinguishable because Brown and Harris both involved two trials rather than one.

We do not regard the distinction as controlling.

Blockburger was a single trial case, and both Brown and Harris used the Blockburger test.

"If two offenses are the same under this test [Block-burger] for purposes of barring consecutive sentences at a single trial, they necessarily will be the same for purposes of barring successive prosecutions. * * * Unless 'each statute requires proof of an additional fact which the other does not,’ * * * the Double Jeopardy Clause prohibits successive prosecutions as well as cumulative punishment.” Brown, supra, 166.

In Iannelli, supra, a single-trial case, the Court observed:

"When both charges are considered at a single trial, the real problem is the avoidance of dual punishment. This problem is analogous to that presented by the threat of conviction for a greater and a lesser included offense, and should be treated in a similar manner.” Id., 786, fn 18.

Moreover in Jeffers v United States, 432 US 137; 97 S Ct 2207; 53 L Ed 2d 168 (1977), a multiple prosecution case, the Court acknowledged:

"Even if the two indictments had been tried together, the cumulative-punishment issue would remain.” Id., 154, fn 23.

Multiple prosecutions do engender double jeopardy concerns that are not present in single prosecutions, Brown, supra, 432 US 165-166, fn 6. But protection from multiple punishment for the same offense lies at the core of the Double Jeopardy Clause, and this protection is as applicable to single prosecutions as to two. Ex parte Lange, 85 US (18 Wall) 163; 21 L Ed 872 (1874).

V

Finally, the people contend that, assuming both convictions are for the "same” offense, there is no double jeopardy here because the Legislature has expressly authorized the double punishment.

It is urged that the Double Jeopardy Clause does not limit the Legislature to the same extent as it does the executive and judiciary. While conceding that no branch of government may secure multiple convictions for the "same” offense through the use of multiple trials (a prohibition the people term "procedural double jeopardy”), the people argue that the Legislature is not limited as to what it may authorize in a single proceeding. Hence, "substantive double jeopardy”, the guarantee disallowing multiple punishment at a single trial, only limits the discretion of courts and prosecutors. The Legislature is free to create and define crimes as it wishes, and indeed to provide for double punishment at one trial should it desire. Hence, it is asserted that when the Legislature has clearly expressed its intent to provide double punishment at a single trial, as it has here, the Blockburger test has no application. Once the legislative intent has been determined, it must be given effect.⁴

We disagree.

Determination of legislative intent is the beginning, not the end, of analysis necessary to decide a double jeopardy question. Jeffers v United States, 432 US 137; 97 S Ct 2207; 53 L Ed 2d 168 (1977).

We do not accept the suggestion that "procedural” double jeopardy limits the Legislature while "substantive” double jeopardy does not, or that the Legislature can authorize multiple punishments at one trial which it could not authorize at successive trials.

If the Legislature may not intentionally subject a defendant to the harassment, anxiety, and expense of defending multiple charges of the "same” offense at successive trials, which the people concede, it may not intentionally do so at one trial. Jeopardy attends each charge of an offense, regardless of its occasion.

"[T]he purpose of the ban on double jeopardy is to prevent 'repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity.’ Green v United States, 355 US 184, 187; 78 S Ct 221, 223; 2 L Ed 2d 199 (1957). It would seem apparent that if the state cannot constitutionally obtain two convictions for the same act at two separate trials, it cannot do so at the same trial. Although admittedly there is less expense, anxiety and ordeal when the blows are delivered at once, one can hardly say that one is not punished, hurt, or embarrassed, if one receives two convictions.” O’Clair v United States, 470 F2d 1199, 1203 (CA 1, 1972).

We are convinced that Blockburger is a constitutional test that must be used whenever it is asserted that two offenses are the "same”. We are satisfied that the language of the United States Supreme Court in Jeffers, supra, and Simpson v United States, 435 US 6; 98 S Ct 909; 55 L Ed 2d 70 (1978), indicates a similar view.

"Cases in which the Government is able to prove violations of two separate criminal statutes with precisely the same factual showing, as here, raise the prospect of double jeopbrdy and the possible need to evaluate the statutes in light of the Blockburger test. That test, the Government argues, is satisfied in this case. We need not reach the issue. Before an examination is made to determine whether cumulative punishments for the two offenses are constitutionally permissible, it is necessary, following our practice of avoiding constitutional decisions where possible, to determine whether Congress intended to subject the defendant to multiple penalties for the single criminal transaction in which he engaged. Jeffers v United States [supra].” Simpson, supra, 11-12.

VI

We vacate the felony-firearm conviction and affirm the conviction of the underlying felony in each case. We adopt Judge Riley’s explanation of the reasons for this disposition, as set forth in 85 Mich App at 742-743.

Affirmed.

Levin and Blair Moody, Jr., JJ., concurred with Kavanagh, J.

1

403 Mich 832-833 (1978).

2

His codefendant, Carlos Robinson, was not convicted of felony-firearm and is not involved in this appeal.

3

The Court of Appeals opinion indicates that the trial judge sentenced Brintley to serve two to ten years in prison for the felony-firearm conviction. The abstract of conviction and sentence in the trial court file states that the sentence was simply two years. The Department of Corrections confirms that the sentence was a determinate two years.

4

Amendment V of the United States Constitution states:

"[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb.”

Article 1, § 15 of the Michigan Constitution similarly states:

"No person shall be subject for the same offense to be twice put in jeopardy.”

5

Wayne County Prosecutor v Recorder’s Court Judge, 85 Mich App 727; 272 NW2d 587 (1978), and People v Brintley, 85 Mich App 714; 272 NW2d 582 (1978).

6

See, for example, People v Brintley, 85 Mich App 714; 272 NW2d 582 (1978); People v Gary Hughes, 85 Mich App 674; 272 NW2d 567 (1978), People v Walter Johnson, 85 Mich App 654; 272 NW2d 605 (1978), and Wayne County Prosecutor v Recorder’s Court Judge, 85 Mich App 727; 272 NW2d 587 (1978). Most of the cages construing the statute as merely a sentence enhancing or sentence augmenting device have done so only to avoid perceived constitutional problems. See, for example, People v McDowell, 85 Mich App 697; 272 NW2d 576 (1978), opinion of Bashara, P.J.

7

MCL 769.10; MSA 28.1082. Similarly, see the third and fourth offender statutes, MCL 769.11; MSA 28.1083 and MCL 769.12; MSA 28.1084.

8

MCL 750.529; MSA 28.797.

9

MCL 750.529; MSA 28.797.

10

In Kowalski, as in the cases at bar, there were no multiple prosecution problems. The convictions and punishments resulted from a single proceeding. Compare Harris v Oklahoma, 433 US 682; 97 S Ct 2912; 53 L Ed 2d 1054 (1977), especially the concurring opinion by Brennan, J.

11

See MCL 335.341(l)(a); MSA 18.1070(41)(l)(a) and MCL 335.341(4)(a); MSA 18.1070(41)(4)(a). Compare the felony-firearm statute, MCL 750.227b; MSA 28.424(2), especially the separate felony and consecutive sentencing portions thereof.

12

See 18 USC 2113, subds (a) and (d).

13

See MCL 335.152; MSA 18.1122 and MCL 335.153; MSA 18.1123.

14

Compare the felony-firearm statute, MCL 750.227b; MSA 28.424(2), especially the separate felony and consecutive sentencing portions thereof.

1

Compare the habitual offender statute for second offenders, a sentence-enhancement provision. MCL 769.10; MSA 28.1082.

2

Compare the last sentence of MCL 750.529; MSA 28.797, the armed robbery statute.

3

The Oklahoma felony-murder statute in Harris is structurally identical to the felony-firearm statute: it also incorporates the commission of "any” felony as a statutory element. Okla Stat 1971, tit 21, § 701. In finding a double jeopardy violation in Harris the Supreme Court focused upon the particular felony which was used at trial to satisfy this statutory element.

4

The people concede that Blockburger is a constitutional test for determining whether successive prosecutions are permissible, and that legislative intent cannot override this protection. It is only in the single trial context that the people argue Blockburger is a tool of statutory construction.