The crime of “felony firearm” is the offense of carrying or possessing a firearm during the commission of another felony. For example, if you are selling cocaine and you possessed a weapon during the sale, you can be charged and convicted of delivery of cocaine AND felony firearm even if the weapon is never used or displayed. It is one of the few offenses in Michigan to carry a mandatory minimum prison sentence that runs CONSECUTIVELY to the penalty for the underlying offense. A felony firearm conviction will guarantee years of incarceration and requires an aggressive defense from the onset.
An individual is guilty of possession of a firearm at the time of commission or attempted commission of a felony (“felony firearm”), contrary to MCL 750.227b, if the prosecutor can prove ALL of the following beyond a reasonable doubt (Model Criminal Jury Instruction 11.34):
- First, that the individual committed or attempted to commit a felony crime. It is not necessary that the individual be convicted of that crime. However, “felony crime” under this statute DOES NOT INCLUDE MCL 750.223 (selling firearms and ammunition), MCL 750.227 (carrying a concealed weapon), MCL 750.227a (unlawful possession of a weapon by a licensee) and MCL 750.230 (altering or removing marks of identification on firearm).
- Second, that at the time the defendant committed or attempted to commit that felony crime, he or she knowingly carried or possessed a firearm, including a pneumatic gun. “Pneumatic gun” means any implement, designed as a gun, that will expel a BB or pellet by spring, gas, or air. Pneumatic gun includes a paintball gun that expels by pneumatic pressure plastic balls filled with paint for the purpose of marking the point of impact. Felony firearm does not apply to a law enforcement officer who is authorized to carry a firearm while in the official performance of his or her duties and who is in the performance of those duties. MCL 750.277b(5).
The penalty for felony-firearm is a felony conviction punishable as follows:
- For a first conviction of this offense, 2 years in state prison.
- For a second conviction of this offense, 5 years in state prison.
- For a third or subsequent conviction of this offense, 10 years in state prison.
- “A term of imprisonment prescribed… in addition to the sentence imposed for the conviction of the felony or the attempt to commit the felony and shall be served consecutively with and preceding any term of imprisonment imposed for the conviction of the felony or attempt to commit the felony.” MCL 750.227b(3).
- “A term of imprisonment imposed under this section shall not be suspended. The person subject to the sentence mandated by this section is not eligible for parole or probation during the mandatory term imposed…” MCL 750.227b(4).
The following principles apply to a prosecution for felony firearm:
- A weapon is considered a “firearm” if it is the type of weapon that was designed or intended to propel a dangerous projectile by an explosive, gas, or air. The definition describes the category of weapons that constitute a “firearm,” but it does not prescribe a requirement that the weapon be “operable” or “reasonably or readily repairable.” In other words, the design and construction of the weapon, rather than its state of operability, are relevant in determining whether it is a “firearm.” People v Peals, 476 Mich 636, 637; 720 NW2d 196 (2006).
- To be guilty of felony-firearm, one must carry or possess the firearm, and must do so when committing or attempting to commit a felony. A person cannot commit felony-firearm by committing a felony while merely owning a firearm. People v Burgenmeyer, 461 Mich 431, 438; 606NW2d 645 (2000).
- “[T]he presence of two different components of the same firearm in the possession of two persons in proximity, when the two components comprise the essential parts of one proscribed firearm, provides a sufficient basis for a factfinder to conclude that it is intended that each of the persons have sufficient control of the assembled firearm to amount to constructive and joint possession of the assembled firearm in each person. [T]wo defendants may be charged with possession of one short-barreled shotgun when each defendant has in his possession one of two components that comprise the weapon.” People v Hill, 433 Mich 464, 479-480; 446 NW2d 140 (1989).
- The felony-firearm statute does not require a nexus between the felony and the firearm. The defendant’s intent regarding his possession of a firearm during the commission of a felony is irrelevant. People v Perry, 119 Mich App 98, 101-102; 326 NW2d 437 (1982).
Self-defense is a legal defense to felony-firearm if the evidence justifies its instruction. People v Goree, 206 Mich App 203; 819 NW2d 82 (2012).
- An individual who has not or is not engaged in the commission of a crime at the time he or she uses deadly force may use deadly force against another individual anywhere he or she has the legal right to be, with no duty to retreat, if either of the following applies:
- The individual honestly and reasonably believes that the use of deadly force is necessary to prevent the imminent death of or imminent great bodily harm to himself or herself or to another individual.
- The individual honestly and reasonably believes that the use of deadly force is necessary to prevent the imminent sexual assault of himself or herself or of another individual.
- An individual who has not or is not engaged in the commission of a crime at the time he or she used force other than deadly force may use force other than deadly force against another individual anywhere he or she has the legal right to be, with no duty to retreat, if he or she honestly and reasonably believes that the use of that force is necessary to defend himself or herself or another individual from the imminent unlawful use of force by another individual.
Some other defenses to felony firearm include, but are not limited to, the following:
- LACK OF KNOWLEDGE – If the prosecutor cannot establish proof of knowledge that the defendant know the existence or location of the firearm, then the mens rea cannot be established.
- NOT POSSESSED OR CARRIED – If the prosecutor cannot show the firearm was accessible at the time that the defendant was engaged in felonious activity, then it cannot be considered in his control.
- LACK OF FELONIOUS ACTIVITY – If the prosecutor cannot show there was felonious activity, then it was not illegal to be in possession of the firearm. However, it is possible to be found guilty of felony firearm and acquitted of the underlying felony.
Few criminal offenses in Michigan are punished as harshly as the felony-firearm statute. If you are charged with this offense, you need a skilled criminal defense attorney immediately to help develop facts and legal theories to defeat this serious accusation. Contact the experienced lawyers at Kershaw, Vititoe & Jedinak PLC to regain some peace of mind today.