Blockburger test in Michigan

2008Subsequently, in Whalen v United States, 445 US 684, 694 ; 100 S Ct 1432 ; 63 L Ed 2d 715 (1980), expanding on Harris, the Court held that convicting and sentencing a defendant for both first-degree felony murder and rape, where the rape was the predicate felony, violated the “multiple punishments” strand because “proof of rape is a necessary element of proof of the felony murder.” In Albernaz v United States, 450 US 333, 338 ; 101 S Ct 1137 ; 67 L Ed 2d 275 (1981), quoting Iannelli, 420 US at 785 n 17, the Court again held that “ ‘the [.Blockburger] test focuses on the statutory elements of t

2008Subsequently, in Whalen v United States, 445 US 684, 694 ; 100 S Ct 1432 ; 63 L Ed 2d 715 (1980), expanding on Harris, the Court held that convicting and sentencing a defendant for both first-degree felony murder and rape, where the rape was the predicate felony, violated the “multiple punishments” strand because “proof of rape is a necessary element of proof of the felony murder.” In Albernaz v United States, 450 US 333, 338 ; 101 S Ct 1137 ; 67 L Ed 2d 275 (1981), quoting Iannelli, 420 US at 785 n 17, the Court again held that “ ‘the [.Blockburger] test focuses on the statutory elements of t

2006In Brown , the Supreme Court, while interpreting the Blockburger rule and holding that the Fifth Amendment forbids successive prosecutions and cumulative punishments for greater and lesser included offenses, regardless of their sequence, stated: An exception may exist where the State is unable to proceed on the more serious charge at the outset because the additional facts necessary to sustain that charge have not occurred or have not been discovered despite the exercise of due diligence. [Brown at 169, n 7 (citing Diaz and Ashe v Swenson, 397 US 436, 453, n 7 ; 90 S Ct 1189 ; 25 L Ed 2d 469 [

2006In Brown , the Supreme Court, while interpreting the Blockburger rule and holding that the Fifth Amendment forbids successive prosecutions and cumulative punishments for greater and lesser included offenses, regardless of their sequence, stated: An exception may exist where the State is unable to proceed on the more serious charge at the outset because the additional facts necessary to sustain that charge have not occurred or have not been discovered despite the exercise of due diligence. [Brown at 169, n 7 (citing Diaz and Ashe v Swenson, 397 US 436, 453, n 7 ; 90 S Ct 1189 ; 25 L Ed 2d 469 [

2025In People v Nutt, 469 Mich 565, 576 ; 677 NW2d1 (2004) (quotation marks and citation omitted), the Michigan Supreme Court stated that “[a]pplication of the same-elements test, commonly known as the Blockburger test, is the well-established method of defining the Fifth Amendment term ‘same offence.’ ” The Blockburger test states that when “the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” Blockburger

2025In People v Nutt, 469 Mich 565, 576 ; 677 NW2d1 (2004) (quotation marks and citation omitted), the Michigan Supreme Court stated that “[a]pplication of the same-elements test, commonly known as the Blockburger test, is the well-established method of defining the Fifth Amendment term ‘same offence.’ ” The Blockburger test states that when “the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” Blockburger

2026See also People v Smith, 478 Mich 292, 315; 733 NW2d 351 (2007) (adopting the Blockburger test for double-jeopardy challenges under the state Constitution). -3- Conviction of CSC-I requires “sexual penetration,” MCL 750.520b(1), which is defined to include “any . . . intrusion, however slight, of any part of a person’s body . . . into the genital or anal openings of another person’s body,” MCL 750.520a(r).

2026See also People v Smith, 478 Mich 292, 315; 733 NW2d 351 (2007) (adopting the Blockburger test for double-jeopardy challenges under the state Constitution). -3- Conviction of CSC-I requires “sexual penetration,” MCL 750.520b(1), which is defined to include “any . . . intrusion, however slight, of any part of a person’s body . . . into the genital or anal openings of another person’s body,” MCL 750.520a(r).

2026If each requires proof of a fact that the other does not, the Blockburger test is satisfied, notwithstanding a substantial overlap in the proof offered to establish the crimes.” Nutt, 469 Mich at 576 (quotation marks and citation omitted).

2026If each requires proof of a fact that the other does not, the Blockburger test is satisfied, notwithstanding a substantial overlap in the proof offered to establish the crimes.” Nutt, 469 Mich at 576 (quotation marks and citation omitted).

2022Thus, courts have presumed that statutes did not allow cumulative punishment if the statutes were considered to proscribe the same offense under the Blockburger test, but this presumption could “be rebutted by a clear indication of legislative intent . . . .” Robideau, 419 Mich at 470 .

2022Thus, courts have presumed that statutes did not allow cumulative punishment if the statutes were considered to proscribe the same offense under the Blockburger test, but this presumption could “be rebutted by a clear indication of legislative intent . . . .” Robideau, 419 Mich at 470 .

2008Subsequently, in Whalen v United States, 445 US 684, 694 ; 100 S Ct 1432 ; 63 L Ed 2d 715 (1980), expanding on Harris, the Court held that convicting and sentencing a defendant for both first-degree felony murder and rape, where the rape was the predicate felony, violated the “multiple punishments” strand because “proof of rape is a necessary element of proof of the felony murder.” In Albernaz v United States, 450 US 333, 338 ; 101 S Ct 1137 ; 67 L Ed 2d 275 (1981), quoting Iannelli, 420 US at 785 n 17, the Court again held that “ ‘the [.Blockburger] test focuses on the statutory elements of t

2008Subsequently, in Whalen v United States, 445 US 684, 694 ; 100 S Ct 1432 ; 63 L Ed 2d 715 (1980), expanding on Harris, the Court held that convicting and sentencing a defendant for both first-degree felony murder and rape, where the rape was the predicate felony, violated the “multiple punishments” strand because “proof of rape is a necessary element of proof of the felony murder.” In Albernaz v United States, 450 US 333, 338 ; 101 S Ct 1137 ; 67 L Ed 2d 275 (1981), quoting Iannelli, 420 US at 785 n 17, the Court again held that “ ‘the [.Blockburger] test focuses on the statutory elements of t

2022Nevertheless, “the Blockburger test is a tool to be used to ascertain legislative intent,” so the focus must be kept on “the statutory elements, not the particular facts of the case.” People v Ream, 481 Mich 223, 238 ; 750 NW2d 536 (2008).

2022Nevertheless, “the Blockburger test is a tool to be used to ascertain legislative intent,” so the focus must be kept on “the statutory elements, not the particular facts of the case.” People v Ream, 481 Mich 223, 238 ; 750 NW2d 536 (2008).

1984Because the substantive power to prescribe crimes and determine punishments is vested with the legislature, United States v Wiltberger, 18 US (5 Wheat) 76, 93; 5 L Ed 37 (1820), the question under the Double Jeopardy Clause whether punishments are 'multiple’ is essentially one of legislative intent, see Missouri v Hunter, 459 US 359 ; 103 S Ct 673 ; 74 L Ed 2d 535 (1983).” 4 As an aid to determining the intent of a legislature, the Supreme Court has used an approach which, although first established in Gavieres v United States, 220 US 338, 342 ; 31 S Ct 421 ; 55 L Ed 489 (1911), is now known a

1984Because the substantive power to prescribe crimes and determine punishments is vested with the legislature, United States v Wiltberger, 18 US (5 Wheat) 76, 93; 5 L Ed 37 (1820), the question under the Double Jeopardy Clause whether punishments are 'multiple’ is essentially one of legislative intent, see Missouri v Hunter, 459 US 359 ; 103 S Ct 673 ; 74 L Ed 2d 535 (1983).” 4 As an aid to determining the intent of a legislature, the Supreme Court has used an approach which, although first established in Gavieres v United States, 220 US 338, 342 ; 31 S Ct 421 ; 55 L Ed 489 (1911), is now known a

2023If each offense requires proof of elements that the other does not, the Blockburger test is satisfied and no double jeopardy violation is involved. [Baker, 288 Mich App at 382 (citations omitted).] However, “[t]here is no violation of double jeopardy protections if one crime is complete before the other takes place, even if the offenses share common elements or one constitutes a lesser offense of the other.” People v Lugo, 214 Mich App 699, 708 ; 542 NW2d 921 (1995).

2023If each offense requires proof of elements that the other does not, the Blockburger test is satisfied and no double jeopardy violation is involved. [Baker, 288 Mich App at 382 (citations omitted).] However, “[t]here is no violation of double jeopardy protections if one crime is complete before the other takes place, even if the offenses share common elements or one constitutes a lesser offense of the other.” People v Lugo, 214 Mich App 699, 708 ; 542 NW2d 921 (1995).

2023Therefore, under the Blockburger test, “because each offense contains an element that the other does not, [CSC-II] and [CSC-IV] are separate offenses for which defendant was properly convicted and sentenced, without violating defendant’s double jeopardy protection against multiple punishments.” Garland, 286 Mich App at 6 .

2023Therefore, under the Blockburger test, “because each offense contains an element that the other does not, [CSC-II] and [CSC-IV] are separate offenses for which defendant was properly convicted and sentenced, without violating defendant’s double jeopardy protection against multiple punishments.” Garland, 286 Mich App at 6 .

2026“If each [statute] requires proof of a fact that the other does not, the Blockburger test is satisfied . . . .” Iannelli v United States, 420 US 770 , 785 n 17; 95 S Ct 1284 ; 43 L Ed 2d 616 (1975).

2026“If each [statute] requires proof of a fact that the other does not, the Blockburger test is satisfied . . . .” Iannelli v United States, 420 US 770 , 785 n 17; 95 S Ct 1284 ; 43 L Ed 2d 616 (1975).

2008Subsequently, in Whalen v United States, 445 US 684, 694 ; 100 S Ct 1432 ; 63 L Ed 2d 715 (1980), expanding on Harris, the Court held that convicting and sentencing a defendant for both first-degree felony murder and rape, where the rape was the predicate felony, violated the “multiple punishments” strand because “proof of rape is a necessary element of proof of the felony murder.” In Albernaz v United States, 450 US 333, 338 ; 101 S Ct 1137 ; 67 L Ed 2d 275 (1981), quoting Iannelli, 420 US at 785 n 17, the Court again held that “ ‘the [.Blockburger] test focuses on the statutory elements of t

2008Subsequently, in Whalen v United States, 445 US 684, 694 ; 100 S Ct 1432 ; 63 L Ed 2d 715 (1980), expanding on Harris, the Court held that convicting and sentencing a defendant for both first-degree felony murder and rape, where the rape was the predicate felony, violated the “multiple punishments” strand because “proof of rape is a necessary element of proof of the felony murder.” In Albernaz v United States, 450 US 333, 338 ; 101 S Ct 1137 ; 67 L Ed 2d 275 (1981), quoting Iannelli, 420 US at 785 n 17, the Court again held that “ ‘the [.Blockburger] test focuses on the statutory elements of t

2000In subsequent applications of the test, we have often concluded that two different statutes define the ‘same offense,’ typically because one is a lesser included offense of the other. [Rutledge v United States, 517 US 292 , _; 116 S Ct 1241 ; 134 L Ed 2d 419, 426 (1996).]” * * * This Court has rejected the Blockburger test in analyzing the Double Jeopardy Clause of the Michigan Constitution, *13 and instead uses traditional means to determine the intent of the Legislature, such as the subject, language, and history of the statutes. [People v] Robideau, [ 419 Mich 458, 486-487 ; 355 NW2d 592 (1

2000In subsequent applications of the test, we have often concluded that two different statutes define the ‘same offense,’ typically because one is a lesser included offense of the other. [Rutledge v United States, 517 US 292 , _; 116 S Ct 1241 ; 134 L Ed 2d 419, 426 (1996).]” * * * This Court has rejected the Blockburger test in analyzing the Double Jeopardy Clause of the Michigan Constitution, *13 and instead uses traditional means to determine the intent of the Legislature, such as the subject, language, and history of the statutes. [People v] Robideau, [ 419 Mich 458, 486-487 ; 355 NW2d 592 (1

2020People v Ford, 262 Mich App 443, 449 ; 687 NW2d 119 (2004). “[T]he Blockburger test is a tool to be used to ascertain legislative intent,” and in applying this test, “a court must inquire whether each offense contains an element not contained -4- in the other offense.” Dickinson, 321 Mich App at 11 .

2020People v Ford, 262 Mich App 443, 449 ; 687 NW2d 119 (2004). “[T]he Blockburger test is a tool to be used to ascertain legislative intent,” and in applying this test, “a court must inquire whether each offense contains an element not contained -4- in the other offense.” Dickinson, 321 Mich App at 11 .

2022See Ream, 481 Mich at 227-228 . 8 Although Gibson was decided when the judicial sentencing guidelines were in effect, the application of the now-advisory legislative sentencing guidelines, see People v Lockridge, 498 Mich 358 ; 870 NW2d 502 (2015), does not alter Gibson’s application. -6- the Court in Milbourn, the guidelines are “a useful tool in carrying out the legislative scheme of properly grading the seriousness and harmfulness of a given crime and given offender within the legislatively authorized range of punishments.” Id. at 657-658.

2022See Ream, 481 Mich at 227-228 . 8 Although Gibson was decided when the judicial sentencing guidelines were in effect, the application of the now-advisory legislative sentencing guidelines, see People v Lockridge, 498 Mich 358 ; 870 NW2d 502 (2015), does not alter Gibson’s application. -6- the Court in Milbourn, the guidelines are “a useful tool in carrying out the legislative scheme of properly grading the seriousness and harmfulness of a given crime and given offender within the legislatively authorized range of punishments.” Id. at 657-658.

1998V provides, in pertinent part: "nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb;" Const. 1963, art. 1, § 15 provides: "No person shall be subject for the same offense to be twice put in jeopardy." [5] The Blockburger test says that "The applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not." Blockburger v. United St

1998V provides, in pertinent part: "nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb;" Const. 1963, art. 1, § 15 provides: "No person shall be subject for the same offense to be twice put in jeopardy." [5] The Blockburger test says that "The applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not." Blockburger v. United St

2008That is, “ ‘[i]n applying the Blockburger rule, the United States Supreme Court has focused on the legal elements of the respective offenses, not on the particular factual occurrence which gives rise to the charges.’ ” Smith, 478 Mich at 309 , quoting Wayne Co Prosecutor v Recorder’s Court Judge, 406 Mich 374, 395 ; 280 NW2d 793 (1979). 13 In Iannelli v United States, 420 US 770 , 785 n 17; 95 S Ct 1284 ; 43 L Ed 2d 616 (1975), the Court held that “the [.Blockburger] test focuses on the statutory elements of the offense.” However, in Harris v Oklahoma, 433 US 682 ; 97 S Ct 2912 ; 53 L Ed 2d 10

2008That is, “ ‘[i]n applying the Blockburger rule, the United States Supreme Court has focused on the legal elements of the respective offenses, not on the particular factual occurrence which gives rise to the charges.’ ” Smith, 478 Mich at 309 , quoting Wayne Co Prosecutor v Recorder’s Court Judge, 406 Mich 374, 395 ; 280 NW2d 793 (1979). 13 In Iannelli v United States, 420 US 770 , 785 n 17; 95 S Ct 1284 ; 43 L Ed 2d 616 (1975), the Court held that “the [.Blockburger] test focuses on the statutory elements of the offense.” However, in Harris v Oklahoma, 433 US 682 ; 97 S Ct 2912 ; 53 L Ed 2d 10

2008Robideau, 419 Mich at 473, 478, citing Gore v United States, 357 US 386 ; 78 S Ct 1280 ; 2 L Ed 2d 1405 (1958) (stressing that Blockburger was decided as a matter of legislative intent), and Albernaz, 450 US at 338 (noting that the Blockburger test was merely a means to determine legislative intent and that the presumption created by the Blockburger test could be rebutted by a clear indication of legislative intent to the contrary).

2008Robideau, 419 Mich at 473, 478, citing Gore v United States, 357 US 386 ; 78 S Ct 1280 ; 2 L Ed 2d 1405 (1958) (stressing that Blockburger was decided as a matter of legislative intent), and Albernaz, 450 US at 338 (noting that the Blockburger test was merely a means to determine legislative intent and that the presumption created by the Blockburger test could be rebutted by a clear indication of legislative intent to the contrary).

2016However, “where, as here, the Legislature specifically authorizes cumulative punishment, the Blockburger test has no application.” People v Dillard, 246 Mich App 163 , 166 n 2; 631 NW2d 755 (2001), citing People v Mitchell, 456 Mich 693, 695 ; 575 NW2d 283 (1998).

2016However, “where, as here, the Legislature specifically authorizes cumulative punishment, the Blockburger test has no application.” People v Dillard, 246 Mich App 163 , 166 n 2; 631 NW2d 755 (2001), citing People v Mitchell, 456 Mich 693, 695 ; 575 NW2d 283 (1998).

2004In Ball v. United States, 470 U.S. 856, 857, 865, 866 , 105 S.Ct. 1668 , 84 L.Ed.2d 740 (appendix); 470 U.S. 856 , 105 S.Ct. 1668 , 84 L.Ed.2d 740 (1985), the United States Supreme Court recognized the Blockburger test, see n. 3, yet determined a defendant could not be convicted of two offenses that stemmed from the same conduct, even though the offenses had different elements, because it was contrary to congressional intent.

2004In Ball v. United States, 470 U.S. 856, 857, 865, 866 , 105 S.Ct. 1668 , 84 L.Ed.2d 740 (appendix); 470 U.S. 856 , 105 S.Ct. 1668 , 84 L.Ed.2d 740 (1985), the United States Supreme Court recognized the Blockburger test, see n. 3, yet determined a defendant could not be convicted of two offenses that stemmed from the same conduct, even though the offenses had different elements, because it was contrary to congressional intent.

2016If each requires proof of a fact that the other does not, the Blockburger test is satisfied, notwithstanding a substantial overlap in the proof offered to establish the crimes.” McGee, 280 Mich App at 683 (quotation marks and citations omitted).

2016If each requires proof of a fact that the other does not, the Blockburger test is satisfied, notwithstanding a substantial overlap in the proof offered to establish the crimes.” McGee, 280 Mich App at 683 (quotation marks and citations omitted).