People v. Frost, Docket No. 57769
Decision Date | 06 January 1983 |
Docket Number | Docket No. 57769 |
Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jeanette FROST, Defendant-Appellant. 120 Mich.App. 328, 328 N.W.2d 44 |
Court | Court of Appeal of Michigan — District of US |
[120 MICHAPP 329] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Robert E. Weiss, Pros. Atty., and Donald A. Kuebler, Chief, Asst. Pros. Atty., Appellate Div., for the People.
Delores M. Coulter, Flint, for defendant on appeal.
Before MAHER, P.J., and BRONSON and SNOW, * JJ.
Defendant pled guilty to larceny in a building, M.C.L. Sec. 750.360; M.S.A. Sec. 28.592. Sentenced to 26 to 48 months in prison, she appeals as of right, raising three claims of error.
Defendant initially contends that there was an insufficient factual basis to support acceptance of her plea. GCR 1963, 785.7(3)(a). The record reflects the following colloquy between the defendant and the court:
Despite the trial court's admonition to defendant not to say that she was trying to steal the coat just because she wanted to plead guilty, defendant insisted on admitting the requisite intent. We find the factual basis sufficient under People v. Haack, 396 Mich. 367, 240 N.W.2d 704 (1976), and accordingly reject this claim of error.
Defendant next contends that the prosecution abused its discretion by charging her with larceny in a building rather than shoplifting. We disagree. Defendant was caught red-handed trying to walk out of a Woolco store with a $34 coat underneath her own jacket. Under the circumstances of this case, we find no abuse of prosecutorial discretion. See People v. Rush, 118 Mich.App. 236, 324 N.W.2d 586 (1982).
Finally, defendant contends that her conviction must be reversed on the ground that her plea bargain was illusory. According to defendant, she pled guilty in reliance on the prosecution's promise not to recommend consecutive sentencing. Defendant also submits that consecutive sentences could not have been imposed, and that therefore her plea was induced by an illusory bargain.
In response, the prosecution insists that the promise not to recommend consecutive sentencing was not part of the agreement, but was a gratuitous, kindly gesture. The record does not support this contention. Both the trial court and defendant [120 MICHAPP 332] apparently regarded this promise as part of the bargain.
In recognition of the probability that the above claim is not a winning argument, the prosecution also insists that consecutive sentencing was actually possible inasmuch as defendant committed the crime while another felony charge was pending. See M.C.L. Sec. 768.7b; M.S.A. Sec. 28.1030(2). 1 The pending charge was attempted larceny in a building, M.C.L. Sec. 750.92; M.S.A. Sec. 28.287, M.C.L. Sec. 750.360; M.S.A. Sec. 28.592. Larceny in a building is punishable by a term of 4 years in prison. M.C.L. Sec. 750.92; M.S.A. Sec. 28.287 provides in part:
Thus, it is clear that the pending charge--attempted larceny in a building--was a misdemeanor, not a felony. The prosecution cites M.C.L. Sec. 761.1(g); M.S.A. Sec. 28.843(g) in support of its contention that the pending charge was a felony since it was punishable by imprisonment for over one year. 2 This general definitional section, however, must give way to the attempt statute's (M.C.L. Sec. 750.92; M.S.A. Sec. 28.287) specific classification of the pending charge as a misdemeanor. See, e.g., Linski v. Employment Security Comm., 358 Mich. 239, 244-245, 99 N.W.2d 582 (1959):
Since the charge pending against defendant was...
To continue reading
Request your trial-
People v. Smith
...(1985). Those reaching the opposite conclusion include People v. Alford, 104 Mich.App. 255, 304 N.W.2d 541 (1981); People v. Frost, 120 Mich.App. 328, 328 N.W.2d 44 (1982). We look to canons of statutory construction in order to determine which of these conflicting interpretations best effe......
-
People v. Cavanaugh
...trial court did instruct on the presumption of innocence.8 Even though attempted larceny is a two-year misdemeanor, People v. Frost, 120 Mich.App. 328, 328 N.W.2d 44 (1982), we do not, therefore, need to vacate the conviction as a habitual criminal. People v. Rosecrants, 88 Mich.App. 667, 2......
-
People v. McCracken
...v. Freeland, 101 Mich.App. 501, 300 N.W.2d 616 (1980); People v. Bolton, 112 Mich.App. 626, 317 N.W.2d 199 (1981); People v. Frost, 120 Mich.App. 328, 328 N.W.2d 44 (1982). Only the dissenting opinions of Judge Brennan in Hart and Ditto, supra, and some of the language in People v. Carmicha......
-
People v. Reed, Docket No. 81907
...128 Mich.App. 1, 339 N.W.2d 659 (1983), and People v. Reuther, 107 Mich.App. 349, 309 N.W.2d 256 (1981), with People v. Frost, 120 Mich.App. 328, 328 N.W.2d 44 (1982), and People v. Alford, 104 Mich.App. 255, 304 N.W.2d 541 (1981). Fortunately, resolution of this split is forthcoming as the......