People v. Carmouche

Per Curiam.

Defendant was convicted by a jury of having committed assault with intent to do great bodily harm less than murder, MCL 750.84; MSA 28.279. He was also convicted of possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). He was sentenced to prison terms of 3 to 10 years for the assault conviction and 2 years for the felony-firearm conviction. These convictions are currently pending on appeal in this Court.

Subsequently, defendant pled guilty to being an habitual offender, second offense, MCL 769.10; MSA 28.1082. The sentence imposed for the assault conviction was vacated and defendant was sentenced to 5 to 15 years in prison under the habitual offender statute. The mandatory two-year felony-firearm sentence was not disturbed.

On appeal, defendant asserts that the trial court erred in not setting aside the two-year felony-firearm sentence. Our review of the law leads us to conclude that the trial court did not err in imposing sentences for both the habitual offender and the felony-firearm convictions.

Where a defendant is convicted as being an habitual offender, the trial court may resentence him to greater punishment as detailed in the statute. MCL 769.10-769.12; MSA 28.1082-28.1084. Upon resentencing, the court is required to "vacate the previous sentence, deducting from the new sentence all time actually served on the vacated sentence if required”. MCL 769.13; MSA 28.1085.

We do not read the habitual offender statute as requiring that the felony-firearm sentence also be set aside. In enacting the felony-firearm statute, the Legislature intended to create a separate crime distinct from the underlying felony and intended that cumulative punishment should be imposed. Wayne County Prosecutor v Recorder’s Court Judge, 406 Mich 374, 389; 280 NW2d 793 (1979), app dis 444 US 948; 100 S Ct 418; 62 L Ed 2d 317 (1979). To hold that the felony-firearm sentence is nullified upon an habitual offender conviction and resentencing on the underlying felony would circumvent the intent of the Legislature in enacting both statutes.

The felony-firearm conviction had no bearing on the habitual offender charge, which was based upon the assault conviction and a 1971 conviction for breaking and entering an unoccupied building with the intent to commit larceny, MCL 750.110; MSA 28.305. We find nothing in the felony-firearm and habitual offender statutes mandating that the felony-firearm sentence be vacated.

Defendant seeks resentencing on other grounds. It is alleged that the sentencing judge considered constitutionally infirm juvenile convictions in setting the habitual offender sentence. The prosecution has agreed that remand is necessary in order that a Tucker¹ hearing may be held on the issue. Accordingly, the matter is remanded for further proceedings as outlined in People v Moore, 391 Mich 426; 216 NW2d 770 (1974). Also see People v Trupiano, 97 Mich App 416; 296 NW2d 49 (1980).

The habitual offender and felony-firearm convictions are affirmed. The felony-firearm sentence is also affirmed. The habitual offender sentence is held in abeyance pending the outcome of the Tucker hearing. We do not retain jurisdiction.

1 United States v Tucker, 404 US 443; 92 S Ct 589; 30 L Ed 2d 592 (1972).