People v. Womack

Per Curiam.

On June 27, 1978, the defendant pled guilty to seven criminal counts contained in two separate informations. In the first case (lower court #78-806650-FR), the defendant pled guilty to two counts of armed robbery, MCL 750.529; MSA 28.797, two counts of assault with intent to do great bodily harm less than murder, MCL 750.84; MSA 28.279, and one count of possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). In the second case (lower court #78-806648-FR), which arose from a separate and distinct offense occurring on a different date, the defendant pled guilty to one count of armed robbery and one count of possession of a firearm during the commission of a felony.

He was sentenced to 10 to 20 years imprisonment on each of the armed robbery counts and five to ten years imprisonment on each of the assault counts. The above sentences were to run concurrently. He was sentenced to five years imprisonment on each of the felony-firearm counts. These sentences were to run consecutively to the above sentences but concurrently with one another. He appeals by right. GCR 1963, 806.1.

The defendant first challenges the constitutionality of his convictions under the felony-firearm statute on double jeopardy grounds. The issue has been decided adversely to the defendant in the recent case of Wayne County Prosecutor v Recorder’s Court Judge, 406 Mich 374; 280 NW2d 793 (1979).

The defendant next contends that his sentences of five years imprisonment on each of the felony-firearm counts was impermissible, arguing that the increased scale of punishment set forth in the statute is applicable only when the defendant has committed a second violation of the felony-firearm statute subsequent to a previous like conviction. We cannot agree.

MCL 750.227b; MSA 28.424(2) provides:

"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.”

The statutory language is unambiguous. The only precondition to the imposition of a five-year sentence is a second conviction under the statute. There is no requirement that commission of the second offense occur subsequent to a first conviction.

Lastly, though not raised by the parties, we note that the imposition of a five-year sentence on the first of the two felony-firearm convictions exceeded the sentence mandated by the statute. That sentence mandated by statute in the case of a first conviction under the statute is two years. Accordingly, we modify the defendant’s sentence by reducing the term of imprisonment on the felony-firearm count in case #78-806648-FR from five to two years. GCR 1963, 820.

Affirmed as modified.