People v. Fyfe

Bronson, J.

(concurring in part, dissenting in part). I, too, would affirm all of defendant’s convictions. However, I would vacate defendant’s five and ten-year sentences for the second and third felony-firearm convictions and remand for entry of three concurrent two-year sentences to be served consecutively with the sentences imposed for the other convictions.

I am persuaded by Judge Walsh’s dissent in People v Willis, 95 Mich App 32; 290 NW2d 82 (1980), and agree with him that, in providing increased punishment for repeat felony-firearm offenders, it was the intent of the Legislature to discourage recidivism. While I concur with the decisions in Willis, People v Barrett, 93 Mich App 808; 287 NW2d 348 (1979), and the majority here, insofar as they reject as controlling the analogy to the habitual offender act, I do not believe that this rejection alone mandates affirmance of the enhanced sentences for the felony-firearm convictions. While the Barrett Court found affirmative support for the result reached there in the construction of the term "subsequent” as used in the felony-firearm statute, I respectfully disagree with that construction and reject any inference built upon it. In Barrett, this Court determined that, since a ten-year sentence might be imposed for a third or subsequent felony-firearm conviction (in-*744eluding a second conviction, as long as it was subsequent to a prior conviction), a five-year sentence was proper for two simultaneous (i.e., non-subsequent) felony-firearm convictions. I believe it is clear that, in mandating a ten-year sentence for a third or subsequent felony-firearm conviction, the Legislature intended the ten-year sentence only for a third, fourth, or fifth, etc. felony-firearm conviction. For a second conviction, even when subsequent to the first, only a five-year sentence would be statutorily authorized.

I adopt the construction urged by Judge Walsh in Willis, supra, and hold that the criminal activity supporting a second, third, or subsequent felony-firearm conviction must have occurred after the prior conviction before the cumulative-sentencing provisions of the statute apply. Accordingly, I would remand for resentencing.