NCJ Number
78352
Journal
Detroit College of Law Review Dated: (Spring 1979) Pages: 123-142
Date Published
1979
Length
20 pages
Annotation
This article discusses the confusion caused by the January 1977 Michigan felony firearm statute, particularly in relation to the problem of double jeopardy.
Abstract
After first causing confusion at the trial level the statute has produced the same results in the Michigan Court of Appeals. The statute is currently in need of clarification. While the statutory language is clear, the courts have continually struggled with the double jeopardy problem. The court of appeals panels are hopelessly split on whether double punishment under the statute constitutes double jeopardy. The panels that have held convictions under the statute invalid have relied on a lesser included offense analysis. They have held that the underlying felony is a lesser included offense of the felony firearms charge, therefore, double punishment for the same offense would constitute double jeopardy. The panels which have upheld felony firearms convictions have dismissed the lesser included offense argument and relied primarily on the same evidence and legislative intent analysis. Great deference was given to the clear legislative intent to impose dual punishment in an attempt to reduce firearm-related crime. However, the legislature could have been accomplished by addressing the problem presented when a weapon (the firearm) is an element of the underlying felony. Both California and Nevada statutes specify whether their provision applies when the firearm is an element of the offense. If the Michigan Legislature had included a similar provision, much of the confusion would have been avoided. The resolution of this uncertainty must now be accomplished in the Michigan Supreme Court. A total of 132 footnotes are supplied. (Author summary modified)