Michigan v. Smith (Opinion on Application)
Annotate this CaseDefendant-appellee Derek Smith was convicted by jury on two counts of assault with intent to do great bodily harm (AWIGBH); three counts of assault with a dangerous weapon (felonious assault); one count of possession of a firearm during the commission of a felony; one count of being a felon in possession of a firearm; and two counts of misdemeanor assault and battery. Defendant appealed in the Court of Appeals, which affirmed his convictions but remanded to the trial court for resentencing on the basis that two offense variables had been incorrectly scored. Upon reconsideration, the Court of Appeals found no merit to defendant's argument the trial court erred by having imposed the felony-firearm sentence to run consecutively with the AWIGBH sentences when the jury had not explicitly found that he possessed a firearm during the commission of the AWIGBH offenses. The appellate court ultimately ordered resentencing, finding the felony-firearm sentence could not be imposed to run consecutively with the AWIGBH sentences. The Court of Appeals remanded the case to the trial court for it to determine whether felonious assault or felon-in-possession was the predicate felony for the felony-firearm conviction and to amend Smith’s judgment of sentence so that the felony-firearm sentence was consecutive only with the predicate offense. The prosecutor appealed that decision to the Michigan Supreme Court. Finding no reversible error, the Michigan Supreme Court affirmed, finding the Court of Appeals appropriately remanded the case to the trial court to impose the two-year felony-firearm sentence to run consecutively with a single felony sentence.
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