(dissenting). I must dissent from the majority holding that the application of the felony-firearm statute, MCL 750.227b; MSA 28.424(2), in this case does not violate the double *688jeopardy clauses of the United States and Michigan Constitutions.
The pertinent statutory provision is as follows:
"Sec. 227b. (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 or section 227a,1 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 or 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).” (Footnote added.)
In order to convict a defendant under this statute, it must first be demonstrated that he committed or attempted to commit a felony. By definition that felony is a lesser included offense of the felony-firearm violation because it is impossible to commit the latter without committing the former. People v Ora Jones, 395 Mich 379; 236 NW2d 461 (1975). That much apparently is conceded by the majority opinion. For the reasons hereinafter stated I would hold that it inescapably follows that conviction and sentencing for both the felony-firearm violation and for the underlying felony is *689precluded by the double jeopardy provisions of both the Federal and the Michigan Constitutions.
I.
Analysis of this issue requires a two-step inquiry. We must first determine whether the Legislature intended cumulative conviction and punishment under both statutory provisions. It is only if this preliminary inquiry is answered in the affirmative that we need consider whether effectuation of that intent violates the constitutional prohibition against multiple punishment for the "same offense”. Simpson v United States, 435 US 6; 98 S Ct 909; 55 L Ed 2d 70 (1978). In this case an affirmative answer to the first question is clear on the face of the felony-firearm statute. We must, therefore, determine the constitutional propriety of the Legislature’s intended result.
The Federal constitution provides in pertinent part:
" * * * [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.
That provision protects against multiple punishment for the same offense. Simpson, supra, Jeffers v United States, 432 US 137; 97 S Ct 2207; 53 L Ed 2d 168 (1977), North Carolina v Pearce, 395 US 711; 89 S Ct 2072; 23 L Ed 2d 656 (1969).
The test for determining whether two separately defined crimes constitute the "same offense” is the so-called Blockburger test. Simpson, supra, Brown v Ohio, 432 US 161; 97 S Ct 2221; 53 L Ed 2d 187 (1977).
"The applicable rule is that where the same act or *690transaction 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 an additional fact which the other does not.” Blockburger v United States, 284 US 299, 304; 52 S Ct 180, 182; 76 L Ed 306, 309 (1932). (Emphasis added.)
This test emphasizes the elements of the two crimes. Brown, supra. Unless the statutes involved satisfy that test the double jeopardy clause of the United States Constitution forbids cumulative punishment. Simpson, supra, Brown, supra.2 The Blockburger test has in fact been applied by courts squarely confronting the double jeopardy implications of statutes similar to the one before us. Kowalski v Parratt, 533 F Supp 1071 (CA 8, 1976), cert den 429 US 844; 97 S Ct 125; 50 L Ed 2d 115 (1976), State v Saxon, 193 Neb 278; 226 NW2d 765 (1975), Jones v Commonwealth, 218 Va 18; 235 SE2d 313 (1977).3
*691Applying Blockburger to the statutes before us I would conclude that the felony-firearm violation and the armed robbery upon which it was premised do not constitute "separate offenses”. Conviction for the armed robbery does not require proof of any facts unnecessary to the felony-firearm conviction because every element of the crime of armed robbery (or whatever felony applies in a given case) must also be proven to establish violation of the felony-firearm statute. Accordingly, I would hold that the cumulative punishment imposed by the statute violates the Federal constitutional prohibition against cumulative punishment for the "same offense”.
I must strongly disagree with the majority’s statement that the constitutionally guaranteed *692protection against double jeopardy "ultimately turns upon whether the Legislature intended a particular act to be punished by only one or more statutes”. (Emphasis added.)
First of all, to assert that the constitutionality of an act of the Legislature is to be determined by reference to the Legislature’s intent in enacting it, is to assert that the Legislature may limit the operation of the constitution. Certainly one of the most fundamental principles of constitutional government is that the constitution limits the power of the Legislature and not vice versa as the majority would seem to hold.
Secondly, United States Supreme Court decisions do not support the majority’s position. The pertinent case law stands for the proposition that legislative intent is considered in order to avoid, if possible, the constitutional issue, not to resolve it. The first question is always whether the Legislature intended the involved statutes to operate cumulatively. But that is the beginning of the inquiry, not the end of it. If cumulative application was intended, the statutes must be examined in order to determine whether they define the "same offense” within the meaning of the constitutional prohibition. Explication of this two step analysis was set forth in a recent case:
"In Blockburger v United States, 284 US 299, 76 L Ed 306, 52 S Ct 180 (1932), this Court set out the test for determining 'whether two offenses are sufficiently distinguishable to permit the imposition of cumulative punishment.’ Brown v Ohio, 432 US 161, 166, 53 L Ed 2d 187, 97 S Ct 2221 (1977). We held that '[t]he 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.’ *693Blockburger v United States, supra, at 304, 76 L Ed 306, 52 S Ct 180. See also Brown v Ohio, supra, at 166, 53 L Ed 2d 187, 97 S Ct 2221; Ianelli v United States, 420 US 770, 43 L Ed 2d 616, 95 S Ct 1284 (1975); Gore v United States, 357 US 386, 2 L Ed 2d 1405, 78 S Ct 1280 (1958). The Blockburger 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.
"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 jeopardy and the possible need to evaluate the statutes in light of the Blockburger test. That test, the Government argues, is satisfied in these cases. 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, 432 US 137, 155, 53 L Ed 2d 168, 97 S Ct 2207 (1977).” Simpson v United States, 435 US 6, 11-12; 98 S Ct 909, 912-913; 55 L Ed 2d 70, 75-76. (Emphasis added.) (Footnotes omitted.)
The majority’s constitutional analysis, therefore, is, in my judgment, devoid of any logical or legal support.4
*694II.
The Michigan Constitution provides in pertinent part:
"No person shall be subject for the same oifense to be twice put in jeopardy.” Const 1963, art 1, § 15.
That provision, like its Federal counterpart, protects against multiple punishment for the "same oifense”. People v Stewart (On Rehearing), 400 Mich 540; 256 NW2d 31 (1977), People v Martin, 398 Mich 303; 247 NW2d 303 (1976).
Although the Michigan double jeopardy clause is substantially identical to the double jeopardy clause of the United States Constitution in terms of the interests thereunder protected, in application, the Michigan Supreme Court has not hesitated to adopt more protective standards than those compelled by the Federal constitution. Compare People v White, 390 Mich 245; 212 NW2d 222 (1973) and People v Cooper, 398 Mich 450; 247 NW2d 866 (1976) with Brown v Ohio, 432 US 161; 97 S Ct 2221; 53 L Ed 2d 187 (1977) and Abbate v United States, 359 US 187; 79 S Ct 666; 3 L Ed 2d 729 (1959). Similarly, our Supreme Court recently has made it clear that where a defendant is convicted of two offenses, one of which is included in the other, the double jeopardy clause prohibits not only cumulative punishment but also conviction for both offenses.
"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 *695finds guilt of the greater, the defendant may not also be convicted separately of the lesser included offense. The prohibition against multiple punishment for the same crime cannot be avoided by the form of the charge.” People v Martin, supra, at 309. (Emphasis added.)
In both Stewart and Martin the Supreme Court vacated convictions for lesser included offenses holding that they violated the double jeopardy prohibition against multiple punishment.
For purposes of the instant case it need not be decided whether Stewart and Martin extend the definition of included offenses to include those factually, although not legally, necessarily included in a greater charge. Compare People v Terry Alexander, 82 Mich App 621; 267 NW2d 466 (1978), with People v Risher, 78 Mich App 431; 260 NW2d 121 (1977). As I read Stewart and Martin, those cases at a minimum preclude conviction for both a greater offense and one legally necessarily included under People v Ora Jones, supra. See People v Wilder, 82 Mich App 358; 266 NW2d 847 (1978). Insofar as the underlying felony is necessarily included in the felony-firearm violation, I would hold that under the decisions of the Michigan Supreme Court, the double jeopardy clause of the Michigan Constitution prohibits conviction for both armed robbery and possession of a firearm in the course of that robbery.5 Because it is clear that *696the factual basis established the defendant’s guilt of both offenses I would vacate the conviction for the felony-firearm violation and the sentence therefor imposed. See, People v Stewart, supra, at 550, n 2.
I would affirm in part, and reverse in part.
MCL 750.227, 750.227a; MSA 28.424, 28.424(1).
"If two offenses are the same under this test for purposes of barring consecutive sentences at a single trial, they necessarily will be the same for purposes of barring successive prosecutions. See In re Nielsen, 131 US 176, 187-188, 9 S Ct 672, 675-676, 33 L Ed 118 (1889); cf. Gavieres v United States, 220 US 338, 31 S Ct 421, 55 L Ed 489 (1911). Where the judge is forbidden to impose cumulative punishment for two crimes at the end of a single proceeding, the prosecutor is forbidden to strive for the same result in successive proceedings. Unless 'each statute requires proof of an additional fact which the other does not,’ Morey v Commonwealth, 108 Mass 433, 434 (1871), the Double Jeopardy Clause prohibits successive prosecutions as well as cumulative punishment.” Brown v Ohio, 432 US 161, 166; 97 S Ct 2221, 2225-2226; 53 L Ed 2d 187, 194-195 (1977).
Although the courts in Jones and Saxon were analytically correct in their approach, they reached erroneous conclusions due to their misstatement of the Blockburger rule as requiring merely that one offense require proof of a fact which the other does not.
The Kowalski decision was premised upon a finding that robbery was not a lesser included offense of using a firearm in the commission of a robbery. Besides being logically suspect, that determination is no longer good law (if ever it was) in view of the United States Supreme Court’s subsequent definition of lesser included offenses for double jeopardy purposes:
"Here the Ohio Court of Appeals has authoritatively defined the *691elements of the two Ohio crimes: joyriding consists of taking or operating a vehicle without the owner’s consent, and auto theft consists of joyriding with the intent permanently to deprive the owner of possession. App. 22. Joyriding is the lesser included offense. The prosecutor who has established joyriding need only prove the requisite intent in order to establish auto theft; the prosecutor who has established auto theft necessarily has established joyriding as well.
"Applying the Blockburger test, we agree with the Ohio Court of Appeals that joyriding and auto theft, as defined by the court, constitute 'the same statutory offense’ within the meaning of the Double Jeopardy Clause. App. 23. For it is clearly not the case that 'each statute requires proof of an additional fact which the other does not’. 284 US, at 304, 52 S Ct, at 182. As is invariably true of a greater and lesser included offense, the lesser offense — joyriding—requires no proof beyond that which is required for conviction of the greater— auto theft. The greater offense is therefore by definition the 'same’ for purposes of double jeopardy as any lesser offense included in it.
"This conclusion merely restates what has been this Court’s understanding of the Double Jeopardy Clause at least since In re Nielsen was decided in 1889. In that case the Court endorsed the rule that
" 'where * * * a person has been tried and convicted for a crime which has various incidents included in it, he cannot be a second time tried for one of those incidents without being twice put in jeopardy for the same offense.’ 131 US, at 188; 9 S Ct, at 676; 33 L Ed at 118.” Brown v Ohio, 432 US 161, 167-168; 97 S Ct 2221, 2226; 53 L Ed 2d 187, 195-196. See also Harris v Oklahoma, 433 US 682; 97 S Ct 2912; 53 L Ed 2d 1054 (1977).
Both the majority in the instant case and the panel in People v Nelson, 79 Mich App 303; 261 NW2d 299 (1977), misconstrue Justice Warren’s lone dissent in Gore v United States, 357 US 386; 78 S Ct 1280; 2 L Ed 2d 1405 (1958), as supporting their position. In citing the Chief Justice’s opinion out of context, my brethren have overlooked two salient features of the Gore decision.
The first is that Justice Warren found that the legislative intent in enacting the statutes in question was not to authorize cumulative punishment under them. Having reached that conclusion, there was no need for him to go further and consider the constitutional question.
Second, the majority opinion which did address the constitutional *694issue, stated that Blockburger was the proper test to determine whether the involved statutes defined "separate offenses” as opposed to "merely different descriptions of the same offense”. The other dissenting opinions also reasoned from that premise.
It is no answer to say, as do my brothers, that no constitutional infirmity exists because the Legislature could have achieved its purpose via a pure sentence enhancement statute. Their argument is erroneous in that it assumes that there would be no difference between the instant statute and the one that they propose. That assumption is factually incorrect and legally invalid.
It is factually incorrect because there are collateral consequences that attach to a separate felony conviction which do not exist with mere sentence enhancement: for example, parole consideration, impeachment at subsequent trials, and habitual offender treatment. Stewart, supra; Martin, supra. It is legally invalid because our Supreme Court has recognized that "even the entry of judgment and the *696imposition of a suspended sentence of imprisonment is additional punishment”. Martin, supra, at 311.
Furthermore, I believe that the proposition that arguably unconstitutional legislation should be given effect where its purpose could be attained in a constitutional manner to be a dangerous and unprecedented abdication of the function of judicial review.