In Michigan, the Use of a Firearm in the Commission of a Felony (Michigan Compiled Laws section 750.227b), also known as Felony Firearm, carries significant punishment. As a first offense, the mandatory incarceration is a flat 2 years in prison; as a second offense, a mandatory, flat 5 years in prison; and as a third offense the mandatory punishment is a flat 10 years in prison. The law provides for consecutive, or “stacked” sentencing. Hence, an individual who was convicted of selling marijuana and Felony Firearm first offense must serve 2 years in prison for the Felony Firearm before beginning to serve the sentence for selling marijuana. In most circumstances, the Judge has no discretion and MUST impose the flat, consecutive 2, 5, or 10 year sentence as required by Michigan law.
A determination of guilt can be based upon actually possessing the firearm on a person (for example, in a coat pocket), or constructively possessing the firearm (for example, in the glove compartment of the car). However, there must be a nexus (a connected relationship) between the possession of the firearm and the commission of an applicable underlying felony with the firearm. A person stealing a car in Detroit could not be charged with Felony Firearm for a gun found in the person’s house in West Bloomfield which has nothing to do with the stealing of the car.
Prosecutors are very eager to charge Felony Firearm when applicable. The Michigan Legislature allows a Felony Firearm charge in connection with the charge of Felon in Possession of a Firearm. It is not considered double jeopardy under Michigan case law, and Prosecutors commonly charge these two offenses together. Because the penalty is so harsh, it is important to retain an experienced, seasoned criminal lawyer to assist you.
There are several possible defenses to Felony Firearm, depending upon the facts of the case, which include: reasonable doubt; the lack of proof of the involvement of a firearm (Felony Firearm does not apply to fake or bb guns); no nexus between the crime and the firearm (for example, an antique gun found during a search of a home for heroin and cocaine has no connection to the drug activity); the Defendant had the lawful ability to possess the firearm (for example, the felon took the necessary steps to legally possess a firearm again) and Constitutional violations (for example illegal search and seizure). Sometimes jurors acquit on Felony Firearm charges because of sympathy and the knowledge of the penalty imposed, even though jurors are not informed of the penalty during the trial, are instructed to not let sympathy influence their decision, and take an oath to follow the instructions given to them by the Court. Jurors are human, and they still brong their outside knowledge and prior experiences with them to Court and the jury room.
Other possible way of avoiding the harsh consequences of Felony Firearm is through the plea bargaining process, or Holmes Youthful Trainee Act (HYTA). A plea bargain usually depends upon the practices and procedures of the county Prosecutor’s office involved, the facts of the case, and the prior history of the Defendant. HYTA only applies to youthful offenders between the ages of 17 and 20 years. Under HYTA, the Sentencing Judge can, but is not obligated, to impose a prison sentence for Felony Firearm. Some Judges will enter into sentencing agreements or Cobbs agreements at the time of the plea ,which limits what the Judge will impose when the Defendant returns for sentencing.
A person charged with Use of A Firearm in the Commission of a Felony (Felony Firearm) should hire a seasoned, experienced criminal defense attorney who can offer the best possible defense to the case. As noted, the penalty is too harsh to rely upon the services of a legal novice, or a lawyer that does not regularly practice criminal defense. Sometimes in life you only have 1 opportunity to get the right result.