PEOPLE
v.
DILLON
Docket No. 77-3329.
Michigan Court of Appeals.
Decided December 8, 1978.Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Peter D. Houk, Prosecuting Attorney, and Michael G. Woodworth, Chief Appellate Attorney, for the people.
Barry F. DeVine, for defendant on appeal.
*581 Before: M.J. KELLY, P.J., and BEASLEY and CYNAR, JJ.
CYNAR, J.
Defendant was charged in a two-count information with armed robbery, MCL 750.529; MSA 28.797, and possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). On June 6, 1977, he pled guilty to the armed robbery charge in return for a promise to dismiss the felony-firearm charge and other charges arising out of a separate, unrelated incident and a promise not to proceed against defendant as a habitual offender. On July 8, 1977, defendant was sentenced to a term of 10 to 20 years imprisonment. He now appeals as a matter of right.
Defendant first contends that there was insufficient evidence to bind him over on the felony-firearm charge. This issue was not raised before the Circuit Court judge and therefore, is not properly before this Court. People v McIntyre, 74 Mich. App. 661, 664-665; 254 NW2d 603 (1977). Furthermore, the complaining witness's testimony that a pistol was used to effect the robbery is sufficient to support the bindover.
Defendant next contends that the felony-firearm statute, MCL 750.227b; MSA 28.424(2), is unconstitutional as a violation of double jeopardy. This issue has recently engendered considerable controversy and has led to a split of opinion within this Court. Compare Wayne County Prosecutor v Recorder's Court Judge, 85 Mich. App. 727; 272 NW2d 587 (1978), and People v Gary Hughes, 85 Mich. App. 674; 272 NW2d 567 (1978). We are of the opinion that the view expressed in People v Gary Hughes is the better reasoned analysis. The Legislature, not the judiciary, is the proper body to define crimes and fix punishments. Brown v Ohio, 432 U.S. 161, 165; *582 97 S. Ct. 2221, 2225; 53 L. Ed. 2d 187 (1977). When it appears that the Legislature did not intend a defendant to be cumulatively punished for different aspects of the same act, cumulative punishment is inappropriate. Simpson v United States, 435 U.S. 6; 98 S. Ct. 909; 55 L. Ed. 2d 70 (1978). In addition, certain presumptions have arisen in favor of defendants when the Legislative intent is unclear. See People v Robinson, 80 Mich. App. 559, 566; 264 NW2d 58 (1978).
However, in those situations where the Legislature intended that a defendant be punished for different aspects of the same act, the double jeopardy clause has not been used as a bar to such punishment.
In the present case the Legislature clearly intended that a defendant who possesses a firearm during the course of a felony be punished for both the felony and the possession of the firearm. This intent is evidenced by the consecutive sentencing requirement and the mandatory two-year sentence for the possession of the firearm. Although the statutory goal might better have been accomplished by enacting a sentence-enhancement scheme similar to that of the habitual offender act, MCL 769.10-769.13; MSA 28.1082-28.1085, the failure to draft the felony-firearm statute in such a manner does not render it constitutionally infirm. See Gore v United States, 357 U.S. 386, 392-393; 78 S. Ct. 1280; 2 L. Ed. 2d 1405 (1958). Therefore, we concur with other panels of this Court and uphold the validity of the felony-firearm statute. See People v Gary Hughes, supra and People v Walter Johnson, 85 Mich. App. 654; 272 NW2d 605 (1978). Since defendant could have been convicted of both charges in the information, his plea to one charge in return for dismissal of the other does not constitute an illusory plea bargain.
Affirmed.
*583 BEASLEY, J., concurred.
M.J. KELLY, P.J. (dissenting).
I dissent for the reasons cited in Judge KAUFMAN'S dissent in People v Drake Johnson, 85 Mich. App. 752; 272 NW2d 599 (1978), and in People v Mitchell, 85 Mich. App. 757; 272 NW2d 601 (1978).
I believe two convictions on identical proofs through the use of separate counts violates the prohibition against double jeopardy in the Michigan and Federal Constitutions. I would find defendant's guilty plea involuntary, set it aside and remand for trial on the armed robbery charge only.