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-