People v. Barnett, Docket No. 23468

• Decision Date: 03 December 1975
• Docket Number: Docket No. 23468
• Citation: 238 N.W.2d 208,66 Mich.App. 99
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert Lee BARNETT, a/k/a Robert Lee, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 208

238 N.W.2d 208

66 Mich.App. 99

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert Lee BARNETT, a/k/a Robert Lee, Defendant-Appellant.

Docket No. 23468.

Court of Appeals of Michigan.

Dec. 3, 1975.

Released for Publication Feb. 17, 1976.

George C. Bush, Saginaw, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., E. Brady Denton, Pros. Atty., for plaintiff-appellee.

Before QUINN, P.J., and R. B. BURNS and D. E. HOLBROOK, Jr., JJ.

R. B. BURNS, Judge.

Defendant was convicted on two counts of delivering a controlled substance contrary to M.C.L.A. § 335.341(1)(a); M.S.A. § 18.1070(41)(1)(a).

Defendant claims the trial court erred by denying his motion to separate the two counts and grant individual trials. We agree.

The information charged the defendant in two separate counts of delivery of a controlled substance on two separate dates, October 11, 1973 and October 18, 1973.

2 Gillespie, Michigan Criminal Law & Procedure (2d ed.), § 553, p. 674, sets forth the general rule to be applied in these cases:

'The rule is equally well settled that, except as stated above, a person cannot be subjected to trial for two separate and distinct offenses at the same time. Where offenses were not committed at the same time, so they cannot be shown by the same evidence, an election is necessary. The rule which permits a prosecutor, under some circumstances, to go to the jury without an election on an information charging separate offenses, does not apply in such cases.' (Citations omitted.)

This statement of law has been reiterated by our Supreme Court in People v. Andrus, 331 Mich. 535, 541, 50 N.W.2d 310, 313 (1951), and People v. Johns, 336 Mich. 617, 623, 59 N.W.2d 20, 23 (1953).

In the present case the two counts were separate offenses committed at different times and demonstrable by different evidence. The defendant was entitled to have separate trials on the two counts.

Reversed and remanded for a new trial.