People v. Hale, Docket No. 54499

• Decision Date: 23 January 1981
• Docket Number: Docket No. 54499
• Citation: 303 N.W.2d 17,103 Mich.App. 273
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Richard Ora HALE, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 17

303 N.W.2d 17

103 Mich.App. 273

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Richard Ora HALE, Defendant-Appellant.

Docket No. 54499.

Court of Appeals of Michigan.

Jan. 23, 1981.

Released for Publication March 23, 1981.

Thomas P. McLaughlin, Jr., Harrison, for defendant-appellant.

Richard Ora Hale, pro se.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Richard S. Allen, Pros. Atty., Leonard J. Malinowski and Thomas C. Nelson, Pros. Attys. Appellate Section for plaintiff-appellee.

Before ALLEN, P. J., and V. J. BRENNAN and MacKENZIE, JJ.

PER CURIAM.

This case reappears before us by order of the Michigan Supreme Court on October 31, 1980, vacating our prior judgment at 96 Mich.App. 343, 292 N.W.2d 204 (1980), and remanding for reconsideration, of the double jeopardy issue in light of People v. Jankowski, 408 Mich. 79, 289 N.W.2d 674 (1980).

Defendant was convicted of both felonious assault, M.C.L. § 750.82; M.S.A. § 28.277, and resisting arrest, a misdemeanor according to M.C.L. § 750.479; M.S.A. § 28.747, stemming from a fracas between defendant and Deputy Richard Miller of the Clare County Sheriff's Department when the latter attempted to arrest defendant for drunk and disorderly conduct. Defendant was sentenced to 21/2 to 4 years on the felonious assault conviction and 15 months to 2 years on the resisting arrest conviction.

In Jankowski, the Court affirmed the defendant's conviction of armed robbery but reversed his two other larceny convictions based on a single taking of a cash register from a gasoline station, reasoning that "it was factually and logically impossible for the defendant to be guilty of armed robbery without at once being guilty of larceny in a building and larceny over $100". 408 Mich. 79, 89, 289 N.W.2d 674. Thus, the pertinent inquiry is whether defendant was convicted of a greater offense and a necessarily or factually included offense.

To be convicted of felonious assault, defendant must have intentionally assaulted another with a dangerous weapon. ¹ M.C.L. § 750.82; M.S.A. § 28.277. Resisting arrest is defined as follows:

"Any person who shall knowingly and wilfully obstruct, resist or oppose any sheriff, coroner, township treasurer, constable or other officer or person duly authorized, in serving, or attempting to serve or execute any process, rule or order made or issued by lawful authority, or who shall resist any officer in the execution of any ordinance, by law, or any rule, order or resolution made, issued, or passed by the common council of any city board of trustees, or common council or village council of any incorporated village, or township board of any township or who shall assault, beat or wound any sheriff, coroner, township treasurer, constable or other officer duly authorized, while serving, or attempting to serve or execute any such process, rule or order, or for having served, or attempted (sic ) to serve or execute the same, or who shall so obstruct, resist, oppose, assault, beat or wound any of the above named officers, or any other person or persons authorized by law to maintain and preserve the peace, in their lawful acts, attempts and efforts to maintain, preserve and keep the peace, shall be guilty of a misdemeanor, punishable by imprisonment in the state prison not more than 2 years, or by a fine of not more than 1,000 dollars." M.C.L. § 750.479; M.S.A. § 28.747.

In the amended information filed March 29, 1977, defendant was charged with two counts: (1) felonious assault upon Richard T. Miller with a dangerous weapon, to wit a shoe; (2) resisting a lawful arrest by Richard T. Miller.

Deputy Miller testified at trial that he was alone on night shift patrol on February 9, 1977, when he observed a car in a ditch off the road. Upon coming closer, Deputy Miller observed defendant sleeping in the front seat of the vehicle. When Deputy Miller inquired of defendant whether he was all right,...