PEOPLE OF MI V DONALD JAMES WYRICK
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
FOR PUBLICATION
March 22, 2005
9:05 a.m.
Plaintiff-Appellee
v
No. 250776
Muskegon Circuit Court
LC No. 02-048013-FH
DONALD JAMES WYRICK
Defendant-Appellant
Official Reported Version
Before: Schuette, P.J., and Fitzgerald and Bandstra, JJ.
FITZGERALD, J. (concurring in part and dissenting in part).
I respectfully dissent from the majority's conclusion that possession of marijuana, second
offense, constitutes a felony within the meaning of the consecutive sentencing provision of the
Public Health Code, MCL 333.7401(3).
The Legislature has designated possession of marijuana as a misdemeanor. MCL
333.7403(2)(d). Defendant's sentence for possession of marijuana was subject to enhancement
pursuant to MCL 333.7413(2) because it was a second conviction, and he was sentenced to a
term of two years. Michigan's habitual-offender statutes are merely sentence-enhancement
mechanisms rather than substantive crimes. People v Zinn, 217 Mich App 340, 345; 551 NW2d
704 (1996); People v Anderson, 210 Mich App 295, 297-298; 532 NW2d 918 (1995). Sentence
enhancement does not convert the misdemeanor of possession of marijuana to a felony. Thus, a
second conviction for possession of marijuana is not "another felony" for purposes of the
consecutive-sentencing provision set out in MCL 333.7401(3). I would conclude that the trial
court erred by ordering the enhanced sentence imposed for the marijuana conviction to be served
consecutively to the sentence imposed for the cocaine conviction.
/s/ E. Thomas Fitzgerald
-1-
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