(dissenting). I agree with Justice Kavanagh, for the reasons set forth in his opinion, *413that the Double Jeopardy Clause1 precludes conviction and punishment for both the underlying felony and felony firearm2 and that the felony-fire arm convictions should be vacated.3 I write separately primarily to respond to the opinion of the Court.
I
It is our duty, minimally, to decide these cases as we think the United States Supreme Court would decide them.4 Our assessment of how it would decide these cases should reflect the reasoning and holdings of that Court and its repeated statements of law should be taken at face value.5
*414Those decisions provide no support for the holding implicit in the Court’s opinion that, in the "single prosecution” context, the Legislature may, consistent with the Double Jeopardy Clause, define crimes and fix punishments to provide cumulative convictions and punishments for the same offense.
To the contrary, while the Supreme Court has frequently said that a legislature is free to define crimes and fix punishments,6 it has also said that the charging powers of prosecutors and the adjudicatory and sentencing powers of courts may not be exercised so as to subject a person — even at one trial7 — to the jeopardy of multiple convictions or *415punishments for the same offense.8
The Supreme Court has adopted the "required evidence” test9 to determine whether the offenses *416are the "same”.10 While the Court, in the application of that test, has looked to the statutory elements and the proofs required to prove "the violation as distinguished from the direct evidence offered to prove that violation [emphasis in original]”, 11 the alternative argument of this Court, based on those precepts, that, if the Double Jeopardy Clause applies at all, the underlying felony and felony firearm are not the same offense, ignores Harris v Oklahoma, 433 US 682-683; 97 S Ct 2912; 53 L Ed 2d 1054 (1977). The Court there held that where an element of the greater offense is the commission of "any felony”,12 the focus is not on *417the elements of any of the large number of felonies that might theoretically have been charged but, rather, on the elements of the felony that was charged.13
In the instant cases the felonies charged were murder (in Alexander) and armed robbery (in Brintley). Paraphrasing Harris, supra, the proofs of those underlying felonies were "needed to prove” elements necessary for conviction of felony firearm. Conviction of the "greater” offense (felony firearm) "cannot be had without conviction of the lesser” offense (murder/armed robbery). The Double Jeopardy Clause, as applied in Harris, thus bars conviction of both offenses.
These consolidated cases are in a sense more compelling than Harris because here the defendants’ convictions of felony firearm depended on their first being convicted of the underlying felony. Harris had been convicted of felony murder on *418proof of a killing in the course of a robbery with firearms, and was thereafter tried separately and convicted of robbery with firearms. The conviction for the greater offense did not depend on conviction of the lesser.
The instant statute contemplates the defendant’s conviction of an underlying felony as a condition precedent to his conviction of felony firearm.14 Further, the jury was instructed in Alexander that conviction of felony firearm depended on conviction of another felony.15 Conviction of an underlying felony — without regard to whether a formal element under the statute — was thus required for conviction of the felony-firearm charge. A conviction born of another conviction is uniquely within the proscription of the Double Jeopardy Clause which, among other things,, seeks to protect ac*419cused persons from proliferation of convictions and punishments for the same offense.
II
Although the Legislature might accomplish its apparent purpose by a sentence enhancement provision,16 since multiple convictions for the same offense expose offenders to additional sentences17 it is substantively important to enforce the mandate of the Double Jeopardy Clause.
While the Legislature may, consistent with the Double Jeopardy Clause, provide that "one with a gun gets you two”, since the offenses here are the "same” the clause precludes courts from effecting the apparent legislative purpose of imposing a mandatory sentence of two years through two convictions and two punishments.
We would affirm the Court of Appeals.
Kavanagh and Blair Moody, Jr., JJ., concurred with Levin, J.See, generally, Note, Twice in Jeopardy, 75 Yale L J 262 (1965); Note, Double Jeopardy: Multiple Prosecutions Arising From the Same Transaction, 15 Amer Crim L Rev 259 (1978); The Supreme Court, 1976 Term, 91 Harv L Rev 70, 106 (1977).
Compare Schwartz, Multiple Punishment for the "Same Offense”: Michigan Grapples with the Deñnitional Problem, 25 Wayne L Rev 825 (1979), with Comment, One With Gun Gets You Two: Deterrent or Double Jeopardy?, 1979 Detroit Col of L Rev 123.
This Court’s determination that the statute providing "separate convictions and cumulative punishments” for the underlying felony and felony firearm does not violate the Double Jeopardy Clause makes it unnecessary to consider whether, if violative of the clause, it should be saved by construing it as a sentence enhancement statute.
The prosecutor makes no claim that the convictions for the lesser offenses should be vacated if the clause is a bar. The lesser offenses— lesser only because they have one element fewer (the firearm) than the greater offenses — are, in the instant cases, more serious and subject the defendants to greater punishment: any number of years or life.
I also associate myself with Judge Riley’s reasoning in Wayne County Prosecutor v Recorder’s Court Judge, 85 Mich App 727, 742; 272 NW2d 587 (1978).
People v Drielick, 400 Mich 559, 567; 255 NW2d 619 (1977), and cases cited therein.
Much of what has been written over the years in the "same offense” Double Jeopardy opinions of the United States Supreme Court was, indeed, unnecessary to decision. Further, its holdings can generally be distinguished from the case at hand. Nevertheless, repeated statements of the governing rule of law by the Supreme Court cannot properly be ignored by any other court because they *414were unnecessary to decision or by drawing distinctions inconsistent with the thrust and rationale of the explicated rule of law. The Supreme Court alone has the prerogative of choosing the time and the case to announce new doctrine and to decide when and if to take back what it said before and if it does so whether and how to explain.
Brown v Ohio, 432 US 161, 165; 97 S Ct 2221; 53 L Ed 2d 187 (1977); Gore v United States, 357 US 386, 392; 78 S Ct 1280; 2 L Ed 2d 1405 (1958).
In Gore v United States, supra, p 389; Blockburger v United States, 284 US 299, 304; 52 S Ct 180; 76 L Ed 306 (1932); Morgan v Devine, 237 US 632, 638-639, 641; 35 S Ct 712; 59 L Ed 1153 (1915); Albrecht v United States, 273 US 1, 11; 47 S Ct 250; 71 L Ed 505 (1927); and American Tobacco Co v United States, 328 US 781, 787; 66 S Ct 1125; 90 L Ed 1575 (1946), multiple charges were tried together. The Court appears to have decided on the merits defendants’ Double Jeopardy claims, concluding in each instance that separate offenses had been charged.
The statement in Brown, supra, regarding "the role of the constitutional guarantee” "[wjhere consecutive sentences are imposed at a single criminal trial” — that it "is limited to assuring that the court does not exceed its legislative authorization by imposing multiple punishments for the same offense” (emphasis supplied) — should be read together with its further statement (Brown, supra, p 166, fn 6) that "to permit the imposition of consecutive sentences” the two offenses must be "sufficiently different” and with the Court’s analysis the same day in Jeffers (fn 8, infra), rejecting the claim that a legislative body may authorize a court to impose multiple punishments for the same offense.
To be sure the life' of the Supreme Court’s statements regarding the imposition of multiple punishment for the same offense at a single trial has been dictum, not holding, as no case has found an imposition violative of the Double Jeopardy Clause. We nevertheless are obliged to take at face value the court’s repeated statements and analysis indicating that the clause does limit a court’s power so to impose *415multiple punishment and that Blockhurger is the test by which the issue is to be determined.
If the Double Jeopardy Clause does not preclude imposition at a single trial of multiple punishments for the same offense, as that term is defined by the Supreme Court, a great amount of judicial effort has been expended needlessly as all that needed to be said is just that.
Brown v Ohio, supra; Gore v United States, supra; Jeffers v United States, 432 US 137, 146, 151; 97 S Ct 2207; 53 L Ed 2d 168 (1977) (Blackmun, J).
In Jeffers v United States, supra, pp 146, 150, 158, eight justices rejected a United States Court of Appeals opinion that had construed Iannelli v United States, 420 US 770; 95 S Ct 1284; 43 L Ed 2d 616 (1975), as creating "a new double jeopardy rule applicable only to complex statutory crimes” permitting separate punishment of greater and lesser offenses "if Congress so intended”. The lead opinion, signed by four justices, stated on the authority of Brown v Ohio, supra, decided the same day, that the Double Jeopardy Clause prohibits the government from "trying a defendant for a greater offense after it has convicted him of a lesser included offense”, and the dissenting opinion, signed by four justices, was to the same effect.
The analysis in the single trial case of Gore v United States, supra, pp 389, 392, is inconsistent with the notion that the Legislature may authorize courts to impose cumulative punishments for the same offense. If it can, there was no reason to say that Congress was not merely giving "different labels to the same thing”, "different descriptions of the same offense”.
In Morgan v Devine, supra, pp 638-639, 641, where the defendant was convicted at a single trial and sentenced for two separate offenses, the Court decided his Double Jeopardy claim on the merits, concluding that there was no identity of offenses, although it acknowledged that it was within the competency of Congress to say what shall be offenses and that its purpose was to create separate offenses.
Blockburger v United States, supra.
The opinion of this Court states that it is unnecessary to decide whether the Blockhurger rule is a "constitutional test which must be satisfied in every case”.
Recently, the Supreme Court stated that Blockhurger states a constitutional test:
"The Blockhurger test has its primary relevance in the double jeopardy context, where it is a guide for determining when two separately defined crimes constitute the 'same offense’ for double jeopardy purposes. Brown v Ohio, supra.” Simpson v United States, 435 US 6, 11; 98 S Ct 909; 55 L Ed 2d 70 (1978) (emphasis supplied).
Earlier, in Brown v Ohio, supra, p 166, the Court, responding to a Double Jeopardy claim, said that Blockhurger states the "established *416test for determining whether two offenses are sufficiently distinguishable to permit the imposition of cumulative punishment”. Similarly, see Gore v United States, supra, p 389; American Tobacco Co v United States, supra, p 788.
US Const, Am V; Const 1963, art 1, § 15.
Harris v United States, 359 US 19, 23; 79 S Ct 560; 3 L Ed 2d 597 (1959).
The Oklahoma statute provided:
"Homicide is murder in the following cases.
"1. When perpetrated without authority of law, and with a premeditated design to effect the death of the person killed, or of any other human being.
"2. When perpetrated by any act imminently dangerous to others and evincing a depraved mind, regardless of human life, although without any premeditated design to effect the death of any particular individual.
"3. When perpetrated without any design to effect death by a person engaged in the commission of any felony.” Okla Stat Ann, tit 21, § 701 (repealed, eff May 17, 1973) (emphasis supplied), and was later amended to read:
"A. A person commits murder in the first degree when he unlawfully and with malice aforethought causes the death of another human being. Malice is that deliberate intention unlawfully to take away the life of a human being, which is manifested by external circumstances capable of proof.
"B. A person also commits the crime of murder in the first degree when he takes the life of a human being, regardless of malice, in the commission of forcible rape, robbery with a dangerous weapon, kidnapping, escape from lawful custody, ñrst degree burglary or ñrst degree arson. ” Okla Stat Ann, tit 21, § 701.7 (emphasis supplied), and
"Homicide is murder in the second degree in the following cases:
"1. When perpetrated by an act imminently dangerous to another *417person and evincing a depraved mind, regardless of human life, although without any premeditated design to effect the death of any particular individual; or
"2. When perpetrated by a person engaged in the commission of any felony other than the unlawful acts set out in Section 1, Subsection B, of this act.” Okla Stat Ann, tit 21, § 701.8 (emphasis supplied).
The Blockburger test, first stated in the single trial context, has been applied without differentiation in multiple prosecutions at successive trials. See Brown v Ohio, supra.
No opinion of the Court states that varying tests or standards are to be applied depending on whether multiple charges are tried at a single or successive trials. Mr. Justice Brennan, in a separate opinion, suggested that higher standards should apply at successive trials, and that the standard stated in In re Nielsen, 131 US 176; 9 S Ct 672; 33 L Ed 118 (1889), be adopted. Abbate v United States, 359 US 187, 198, 201; 79 S Ct 666; 3 L Ed 2d 729 (1959). In Brown v Ohio, supra, p 166, the Court, in a footnote, stated that Nielsen provides "additional protection” not provided by Blockburger. Harris v Oklahoma (a successive trial case) relied on Nielsen (also a successive trial case).
It is not, however, the prerogative of this Court to enunciate new doctrine: that "same offense” is a protean concept having different meanings in the single and successive trial contexts, that Harris articulated a higher standard, and that it is applicable only in prosecutions at successive trials.
"(D 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 or section 227a, is guilty of a felony, and shall be imprisoned for 2 years. Upon a second conviction under this section, the person shall be imprisoned for 5 years. Upon a third or subsequent conviction under this section, the person shall be imprisoned for 10 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 attempt to commit the felony.
"(3) The term of imprisonment imposed under this section shall not be suspended. The person subject to the sentence mandated by this section shall not be eligible for parole or probation during the mandatory term imposed pursuant to subsection (1).” MCL 750.227b; MSA 28.424(2) (emphasis supplied).
"Now it should be quite clear to you that the defendant’s guilt or innocence of the second count will depend on whether or not she’s convicted of any count charged in the first offense, guilty of any offense in the first count.”
Brintley was a bench trial. The judge found:
"I find, as a. fact, beyond a reasonable doubt, that both defendants are guilty of Count I, robbery armed. I find, as a fact, that the instrumentality used in the robbery armed was a gun and that the defendant, Curtis Brintley, possessed the gun doing [sic] the commission of a felony which is in violation of statute 750.227b.”
Such a provision could, for instance, require imposition of a mandatory minimum term of imprisonment when the person who commits or attempts to commit a felony has a firearm.
For example, a second conviction may result in collateral consequences under this state’s and other habitual offender statutes, and at subsequent trials where a past conviction record may be introduced in evidence, used for impeachment, or be reflected in a pre-sentence report.