People v. DeLong, Docket No. 66772

Citation339 N.W.2d 659,128 Mich.App. 1
Decision Date19 October 1983
Docket NumberDocket No. 66772
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. Melvin Allen DeLONG, Defendant-Appellant. 128 Mich.App. 1, 339 N.W.2d 659
CourtCourt of Appeal of Michigan (US)

[128 MICHAPP 2] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., George B. Mullison, Pros. Atty., and Thomas J. Rasdale, Asst. Pros. Atty., for the People.

Charles E. Binder, Bay City, for defendant-appellant.

Before MacKENZIE, P.J., and KELLY and EVERETT, * JJ.

PER CURIAM.

Defendant pled nolo contendere to resisting and obstructing a police officer, M.C.L. Sec. 750.479; M.S.A. Sec. 28.747. He also pled guilty to being [128 MICHAPP 3] a third-offense habitual felony offender, M.C.L. Sec. 769.11; M.S.A. Sec. 28.1083. Sentenced to a term of from 32 to 48 months in prison, defendant appeals as of right.

Defendant states that he pled nolo contendere because he was intoxicated at the time of the incident and could not sufficiently remember the event to provide a factual basis in support of his plea. See generally GCR 1963, 785.7(3)(a). He now argues on appeal that the trial court erred in accepting his plea without first requiring the prosecution to produce evidence negating his "intoxication defense".

It is well-established that when a nolo contendere plea is offered to a specific intent crime because the defendant was too intoxicated to remember the events of the incident the prosecution must offer evidence refuting the intoxication defense. See People v. Polk (On Rehearing), 123 Mich.App. 737, 333 N.W.2d 499 (1983); People v. Stoner, 23 Mich.App. 598, 608, 179 N.W.2d 217 (1970), lv. den. 383 Mich. 806 (1970). Resisting and obstructing a police officer, however, is not a specific intent crime. People v. Gleisner, 115 Mich.App. 196, 320 N.W.2d 340 (1982). Voluntary intoxication, therefore, is not a defense. Gleisner, supra, p. 200, 320 N.W.2d 340; see People v. Langworthy, 416 Mich. 630, 331 N.W.2d 171 (1982) (expressly holding that voluntary intoxication is not a defense to general intent crimes). The trial court did not err, therefore, in accepting defendant's nolo contendere plea to resisting and obstructing a police officer without requiring the prosecution to produce evidence refuting the fact of defendant's intoxication at the time of the crime.

Defendant argues next that since resisting and obstructing a police officer has been specifically [128 MICHAPP 4] labeled by the Legislature to be a misdemeanor, see M.C.L. Sec. 750.479; M.S.A. Sec. 28.747, he cannot be sentenced as being a third-offense habitual felony offender. At first blush, defendant's argument is attractive. Indeed, the habitual offender provision under which defendant was sentenced refers to a person committing a subsequent "felony" after having been previously convicted of two or more felonies or attempted felonies. See M.C.L. Sec. 769.11; M.S.A. Sec. 28.1083. The resisting-and-obstructing penal statute does in fact refer to such an offense as being a misdemeanor. See M.C.L. Sec. 750.479; M.S.A. Sec. 28.747.

The habitual offender provisions, however, are part of Michigan's integrated Code of Criminal Procedure, M.C.L. Sec. 760.1 et seq.; M.S.A. Sec. 28.841 et seq. The code specifically defines the term felony "as used in this act", to include, among other things, offenses which are punishable by imprisonment of one year or more. M.C.L. Sec. 761.1(g); M.S.A. Sec. 28.843(g). Resisting and obstructing a police officer is punishable by a prison term of up to two years. M.C.L. Sec. 750.479; M.S.A. Sec. 28.747. Thus, resisting and obstructing a police officer is a "felony" for purposes of application of the habitual offender provisions of the Code of Criminal Procedure. People v. Rosecrants, 88 Mich.App. 667, 278 N.W.2d 713 (1979). But see People v. Reuther, 107 Mich.App....

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7 cases
  • People v. Boatman
    • United States
    • Court of Appeal of Michigan (US)
    • December 28, 2006
    ...misdemeanor and a felony, and a difference of 13 years in the sentence imposed. See MCL 750.479; MCL 769.10 et seq.; People v. DeLong, 128 Mich.App. 1, 339 N.W.2d 659 (1983). "The purpose of a plea colloquy is to protect the defendant from an unintelligent or involuntary plea." People v. Wa......
  • People v. Abramski
    • United States
    • Court of Appeal of Michigan (US)
    • June 10, 2003
    ...Use of the term "knowingly" or "willfully" in a statute does not mean that a crime requires specific intent. See People v. DeLong, 128 Mich.App. 1, 3, 339 N.W.2d 659 (1983). "[W]here the knowledge element of an offense is necessary simply to prevent innocent acts from constituting crimes, t......
  • People v. Comstock
    • United States
    • Court of Appeal of Michigan (US)
    • February 1, 1985
    ...such as two-year misdemeanors. See People v. McGill, 131 Mich.App. 465, 477-478, 346 N.W.2d 572 (1984); People v. DeLong, 128 Mich.App. 1, 339 N.W.2d 659 (1983); People v. Cavanaugh, 127 Mich.App. 632, 644, 339 N.W.2d 509 (1983); People v. Rice, 101 Mich.App. 1, 300 N.W.2d 428 (1980), rev'd......
  • People v. Cannoy
    • United States
    • Court of Appeal of Michigan (US)
    • October 19, 1984
    ...the incident due to intoxication, the prosecution must offer evidence refuting the intoxication defense. See People v. DeLong, 128 Mich.App. 1, 339 N.W.2d 659 (1983); People v. Polk (On Rehearing), 123 Mich.App. 737, 333 N.W.2d 499 (1983); People v. Stoner, 23 Mich.App. 598, 608, 179 N.W.2d......
  • Request a trial to view additional results

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