(concurring in part and dissenting in part). I respectfully dissent from the majority’s conclusion that defendant’s conviction of both armed robbery and unlawfully driving away an automobile does not violate the Double Jeopardy Clause. In all other respects, I concur in the Court’s opinion.
Notwithstanding our Supreme Court’s rejection of the factual double jeopardy test and this court’s decisions in People v Hendricks, 200 Mich App 68; *643503 NW2d 689 (1993), lv gtd 444 Mich 936 (1994),1 and People v Murph, 185 Mich App 476; 463 NW2d 156 (1990),2 in the instant case, defendant’s conviction of both armed robbery and udaa results in double punishment in violation of the Double Jeopardy Clause.
Defendant took the victim’s automobile and nothing else. A jury could not have found, as was possible in Murph, "that defendant did not intend to take the [automobile] permanently, but merely used it to make his getaway and to transport his ill-gotten booty.” Murph, p 481.
Under circumstances where the only property taken from the victim of a larceny or robbery is an automobile, I would hold that the Double Jeopardy Clause is violated when a defendant is convicted of both udaa and robbery or larceny.3
I would vacate defendant’s udaa conviction as violative of the Double Jeopardy Clause._
Hendricks addressed the question whether a defendant accused of armed robbery stemming from a carjacking was entitled to an instruction on udaa. The Court held that udaa is not a cognate lesser offense of armed robbery and so the defendant was not entitled to the udaa instruction. Hendricks did not address the question whether a defendant can be convicted of both armed robbery and udaa where the only property taken in the robbery is the automobile.
Murph preceded Administrative Order No. 1990-6 and so is not binding. Murph is also distinguishable on its facts. Murph, p 481.
Were it not for Hendricks, I would hold that udaa is a cognate lesser offense of armed robbery where the object of the larceny is an automobile. It would then follow that if supported by the evidence, either the prosecutor or the defendant would be entitled to an instruction on udaa, even though not charged, and the jury should be instructed that it may convict on one or the other charge, but not both.
This Court’s decision in Hendricks can be used as both a sword and a shield. Under Hendricks, if a defendant charged with robbery involving an automobile were to testify that the victim left the automobile running at a gas station and the defendant merely borrowed the car intending to return it, the prosecutor would not be entitled to an instruction on udaa. If the jury were to believe the defendant’s testimony, the defendant would be found not guilty of both robbery and the lesser offense of larceny, because the defendant did not intend to deprive the victim permanently of the automobile.