People v. Johnson

• Decision Date: 18 December 1979
• Docket Number: Docket No. 78-3007
• Citation: 288 N.W.2d 436,94 Mich.App. 388
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Richard J. JOHNSON, Defendant-Appellant. 94 Mich.App. 388, 288 N.W.2d 436
• Court: Court of Appeal of Michigan — District of US

Page 436

288 N.W.2d 436

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Richard J. JOHNSON, Defendant-Appellant.

Docket No. 78-3007.

94 Mich.App. 388, 288 N.W.2d 436

Court of Appeals of Michigan.

Dec. 18, 1979.

Released for Publication Feb. 28, 1980.

[94 MICHAPP 389] James R. Neuhard, State Appellate Defender, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., E. Reilly Wilson, Appellate Chief, Asst. Pros. Atty., for plaintiff-appellee.

Before BRONSON, P. J., and RILEY and QUINNELL, ^* JJ.

[94 MICHAPP 390] PER CURIAM.

Defendant was plea-convicted of armed robbery, contrary to M.C.L. § 750.529; M.S.A. § 28.797, and convicted subsequently, at a bench trial, of felonious assault, ¹ contrary to M.C.L. § 750.82; M.S.A. § 28.277. He was sentenced to 15 to 30 years on the first charge and 40 to 60 months on the second one. Defendant now appeals as of right.

Defendant's sole contention on appeal is that his convictions for two offenses arising out of the same transaction violate the prohibition against double jeopardy. He claims that he is being punished twice for the same offense, essentially the assault inherent in both armed robbery and felonious assault.

We note initially that defendant's objection was not raised before or during trial. Under such circumstances, a double jeopardy claim may be waived. People v. McDonald, 306 Mich. 65, 67-68, 10 N.W.2d 309 (1943), People v. Johnson, 62 Mich.App. 240, 243, 233 N.W.2d 246 (1975). However, since the record contains no evidence of an intentional abandonment of the double jeopardy protection and since there is a need for clarification of this issue, we will examine defendant's claim. People v. Jones, 75 Mich.App. 261, 270-271, 254 N.W.2d 863 (1977). See also, People v. Cooper, 398 Mich. 450, 247 N.W.2d 866 (1976).

The Fifth Amendment protection against double jeopardy, which functions as a check on the Federal system also extends to the states through the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). This guarantee ensures that a defendant will not be tried twice for the same offense or be tried twice for different offenses arising from one incident. See [94 MICHAPP 391] North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969), People v. White, 390 Mich. 245, 254, 212 N.W.2d 222 (1973).

The double jeopardy prohibition does Not operate to bar prosecution of two dissimilar offenses that occur at separate times. In People v. Noth, 33 Mich.App. 18, 189 N.W.2d 779 (1971), the defendant was convicted of rape and manslaughter. After noting that the latter offense was completed before the former ever took place, the Court commented:

"In logic and in law, it matters not that the interval between the two offenses was five or ten minutes, five or ten days, or five or ten weeks. The Fifth Amendment is not, in our view, a Carte blanche to commit a separate offense in immediate proximity in point of time and place to another separate offense. Defendant cannot escape prosecution for the later separate offense." Noth, supra, at 29, 189 N.W.2d at 783.

Even if the offenses share common elements or one constitutes a lesser offense of the other, there is no violation based on double prosecution if one crime is complete before the other takes place. See People v. Jones, supra.

In the instant case, defendant committed an armed robbery with a butcher knife, to which he pled guilty prior to trial. A few minutes later, the defendant committed a felonious assault by striking the complainant on the shoulder, an offense which he was found guilty of at a bench trial. The latter assault did not form the basis for the prior robbery charge; each was a distinct...