People v. Kotesky
| Decision Date | 22 July 1991 |
| Docket Number | Docket No. 125599 |
| Citation | 475 N.W.2d 473,190 Mich.App. 330 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Kristine KOTESKY, Defendant-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
Frank J. Kelley, Atty. Gen., Gay Secor Hardy, Sol. Gen., Dale A. Crowley, Pros. Atty., and William E. Molner, Asst. Atty. Gen., for people.
Beverly J. Clark, Lansing, for defendant-appellant on appeal.
Before JANSEN, P.J., and MICHAEL J. KELLY and BRENNAN, JJ.
Defendant pleaded guilty of attempted uttering and publishing, M.C.L. Sec. 750.92; M.S.A. Sec. 28.287; M.C.L. Sec. 750.249; M.S.A. Sec. 28.446, and was sentenced to two years' probation, with the first nine months to be served in jail. Defendant appeals as of right, arguing that she should have been charged under a more specific statute and that her conviction therefore is invalid. We disagree.
We initially note that assertions that a charge is brought under an inapplicable statute are not waived by a plea of guilty. People v. New, 427 Mich. 482, 492, 398 N.W.2d 358 (1986); People v. Beckner, 92 Mich.App. 166, 285 N.W.2d 52 (1979).
It is a fundamental rule of statutory construction that when two statutes encompass the same subject matter, one being general and the other specific, the latter will control. See People v. Ford, 417 Mich. 66, 79, 331 N.W.2d 878 (1982). However, the two statutes alleged by defendant to apply in this case do not encompass the same subject matter.
Defendant was convicted of uttering and publishing a forged MasterCard check stolen from her stepfather. She contends that the check was a "financial transaction device" and that she therefore should have been charged under the statute prohibiting the uttering and publishing of such devices, M.C.L. Sec. 750.248a; M.S.A. Sec. 28.445(1), not under the general uttering and publishing statute, M.C.L. Sec. 750.249; M.S.A. Sec. 28.446.
A "financial transaction device" is defined under M.C.L. Sec. 750.157m(f); M.S.A. Sec. 28.354(13)(f) as:
(i) An electronic funds transfer card.
(ii) A credit card.
(iii) A debit card.
(iv) A point-of-sale card.
(v) Any instrument, device, card, plate, code, account number, personal identification number, or a record or copy of a code, account number, or personal identification number or other means of access to a credit account or deposit account, or a driver's license or state identification card used to access a proprietary account, other than access originated solely by a paper instrument, that can be used alone or in conjunction with another access device, for any of the following purposes:
(A) Obtaining money, cash refund or credit account credit, goods, services, or any other thing of value. [Emphasis added.]
In this case, no evidence was offered concerning the nature or character of the MasterCard check. But even assuming that the...
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People v. Hogan
...statute was not waived by her guilty plea. People v. New, 427 Mich. 482, 492, 398 N.W.2d 358 (1986); People v. Kotesky, 190 Mich.App. 330, 331, 475 N.W.2d 473 (1991). "In reviewing the adequacy of the factual basis for a plea, this Court examines whether the factfinder could properly convic......
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