PEOPLE v. NOEL, 88 Mich. App. 752 (1979)

279 N.W.2d 305

PEOPLE v NOEL

Docket Nos. 77-4987, 77-5233.Michigan Court of Appeals.
Decided March 6, 1979.

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Frank J. Kelley, Attorney General, Robert A. Derengoski,
Solicitor General, William L. Cahalan, Prosecuting Attorney Edward R. Wilson, Principal Attorney, Appeals, and Robert M. Morgan, Assistant Prosecuting Attorney, for the people.

Alfred H. Varga and Robert L. Ziolkowski, for defendant on appeal.

Before: J.H. GILLIS, P.J., and V.J. BRENNAN and BASHARA, JJ.

V.J. BRENNAN, J.

On August 26, 1977, defendant, Charles Noel, pled guilty in Recorder’s Court case #77-05858 to armed robbery, MCL 750.529; MSA 28.797, and possession of a firearm in the commission of a felony (armed robbery), MCL 750.227b; MSA 28.424(2). The defendant also pled guilty in Recorder’s Court case #77-05788 to assault with intent to rob being armed, MCL 750.89;

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MSA 28.284, and possession of a firearm in the commission of a felony.

In the former proceeding defendant was sentenced to 2 to 15 years on the robbery and 2 years on the felony-firearm charge, said terms to run consecutively. In the latter proceeding defendant was sentenced to 2 to 15 years on the assault, said term to run concurrently with the robbery sentence, and 5 years on the felony-firearm charge, said term to run consecutively with the aforementioned 2-year term. The sentencing court set forth the defendant’s net sentence as 9 to 15 years. The defendant appeals by right. GCR 1963, 806.1.

The defendant raises two issues on appeal, neither of which warrants lengthy discussion. The defendant’s contention that the element of larceny from the person was not established at the plea proceeding is without merit. The record clearly shows that the defendant took money from the complainant at gunpoint. Furthermore, a review of the record and docket entries indicates no error in sentencing.

This brings us to a problem not raised by the defendant. Generally we do not address issues not raised by the parties on appeal. However, our function is to dispense justice, and we are given the limited power to raise questions on our own. Dearborn v Bacila, 353 Mich. 99, 118; 90 N.W.2d 863 (1958), Vermeylen v Knight Investment Corp, 73 Mich. App. 632, 642; 252 N.W.2d 574
(1977).

We have held in People v Blount, 87 Mich. App. 501; 275 N.W.2d 21
(1978), that the rule against double jeopardy prohibits separate convictions on both felony firearm and the underlying felony. In accordance with that opinion we set aside the two convictions for felony firearm. However the defendant’s sentence as an augmentation of the penalty for the underlying felony is upheld.

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Reversed in part; affirmed in part.

BASHARA, J., concurred.

J.H. GILLIS, (concurring in part, dissenting in part).

I agree with Judge BRENNAN’S opinion except for the last paragraph. I agree that the double jeopardy provisions of both the Michigan and United States Constitutions prohibit separate convictions on both the felony firearm and the underlying felony and I would set aside the two convictions for felony firearm and the penalty imposed as a result thereof. See my dissenting opinion in People v Moore, 87 Mich. App. 475, 480; 275 N.W.2d 19
(1978).

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