People v. Bigelow
| Citation | 581 N.W.2d 744,229 Mich.App. 218 |
| Decision Date | 10 April 1998 |
| Docket Number | Docket No. 188900 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert Jeffrey BIGELOW, Defendant-Appellant. |
| Court | Court of Appeal of Michigan (US) |
Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Arthur A. Busch, Prosecuting Attorney, and Donald A. Kuebler, Chief, Appeals, Research, and Training, for People.
State Appellate Defender by Richard B. Ginsberg, for Defendant-Appellant on appeal.
Before CORRIGAN, C.J., and, MacKENZIE, REILLY, FITZGERALD, WHITE, HOEKSTRA, and O'CONNELL, JJ.
Pursuant to MCR 7.215(H)(3), this conflict panel was convened to resolve an inconsistency between this Court's prior, vacated opinion in People v. Bigelow, 225 Mich.App. 806, 571 N.W.2d 520 (1997), and this Court's earlier decision in People v. Passeno, 195 Mich.App. 91, 489 N.W.2d 152 (1992). In accordance with MCR 7.215(H)(1), the prior Bigelow panel was required to follow the precedent of Passeno, supra. Were it not for MCR 7.215(H)(1), the previous panel would have reversed the decision of the lower court.
The conflict at issue involves defendant's convictions of first-degree premeditated murder, M.C.L. § 750.316(1)(a); M.S.A. § 28.548(1)(a), and first-degree felony murder, M.C.L. § 750.316(1)(b); M.S.A. § 28.548(1)(b). In People v. Bigelow, supra, this Court held that such dual convictions arising from the death of a single victim violate double jeopardy. Id. Thus, pursuant to this Court's earlier decision in People v. Passeno, supra, this Court affirmed defendant's conviction of first-degree premeditated murder and vacated defendant's conviction of felony murder. However, the Bigelow panel noted that, were it permitted, it would follow People v. Zeitler, 183 Mich.App. 68, 454 N.W.2d 192 (1990), and hold that "the appropriate remedy to protect defendant's rights against double jeopardy is to modify defendant's judgment of conviction and sentence to specify that defendant's conviction is for one count and one sentence of first-degree murder supported by two theories: premeditated murder and felony murder." Bigelow, supra at 806, 571 N.W.2d 520. 1
Following an order by the Court of Appeals en banc invoking the conflict resolution procedure of MCR 7.215(H)(1), this case was reconsidered by this special panel. After due consideration, we resolve the conflict issue in favor of the prior Bigelow opinion. We are persuaded by the priorBigelow opinion and hereby adopt its reasoning and analysis with regard to the conflict issue only. 2 Because the conflict involved only this issue, we reinstate the balance of the prior Bigelow opinion. The part ofPasseno that addresses the conflict issue is overruled.
During oral argument, defendant also claimed that his convictions of and sentences for both felony murder and the predicate felony of breaking and entering an occupied dwelling with the intent to commit larceny, M.C.L. § 750.110; M.S.A. § 28.305, deprived him of his state and federal constitutional rights against double jeopardy. During oral arguments, the prosecutor conceded that defendant's conviction of breaking and entering must be vacated on double jeopardy grounds if the conviction of felony murder is upheld. We agree that the convictions of and sentences for both felony murder and the predicate offense violated his right against double jeopardy and, accordingly, vacate the conviction of and sentence for breaking and entering. People v. Gimotty, 216 Mich.App. 254, 259-260, 549 N.W.2d 39 (1996).
We direct the lower court to vacate defendant's conviction of and sentence for breaking and entering and to modify defendant's judgment of sentence to specify that defendant's conviction and single sentence is of one count of first-degree murder...
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