People v. Larose

• Decision Date: 28 November 1978
• Docket Number: Docket No. 77-4294
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Gary Michael LaROSE, Defendant-Appellant. 87 Mich.App. 298, 274 N.W.2d 45
• Court: Court of Appeal of Michigan — District of US

Page 45

274 N.W.2d 45

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Gary Michael LaROSE, Defendant-Appellant.

Docket No. 77-4294.

87 Mich.App. 298, 274 N.W.2d 45

Court of Appeals of Michigan.

Nov. 28, 1978.

Rehearing Denied Dec. 28, 1978.

Released for Publication Jan. 25, 1979.

[87 MICHAPP 299] James R. Neuhard, State Appellate Defender, by P. E. Bennett, Deputy State Appellate Defender, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Edward J. Grant, Pros. Atty., John L. Wildeboer, Asst. Pros. Atty., for plaintiff-appellee.

Before R. B. BURNS, P. J., and WALSH and CLEMENTS, ^* JJ.

WALSH, Judge.

Defendant appeals his plea-based conviction of obtaining money (in an amount over $100) by false pretenses with intent to defraud. M.C.L. § 750.218; M.S.A. § 28.415. Defendant was sentenced to a prison term of 21/2 to 10 years. He was originally charged with one count of obtaining money by false pretenses and one count of delivering an insufficient funds check with intent to defraud. M.C.L. § 750.131; M.S.A. § 28.326. Pursuant to a plea bargain in which other outstanding charges [87 MICHAPP 300] were dropped and charges for other alleged crimes were not brought, the second count was dropped and defendant pled guilty to count one.

The offense to which defendant pled guilty is defined in M.C.L. § 750.218; M.S.A. § 28.415:

"Any person who, with intent to defraud or cheat, shall designedly, by color of any false token or writing or by any false or bogus check or other written, printed or engraved instrument, by spurious coin or metal in the similitude of coin, or by any other false pretense, cause any person to grant, convey, assign, demise, lease or mortgage any land or interest in land, or obtain the signature of any person to any written instrument, the making whereof would be punishable as forgery, or obtain from any person any money or personal property or the use of any instrument, facility or article or other valuable thing or service, or by means of any false weights or measures obtain a larger amount or quantity of property than was bargained for, or by means of any false weights or measures sell or dispose of a less amount or quantity of property than was bargained for, if such land or interest in land, money, personal property, use of such instrument, facility or article, valuable thing, service, larger amount obtained or less amount disposed of, shall be of the value of $100.00 or less, shall be guilty of a misdemeanor; and if such land, interest in land, money, personal property, use of such instrument, facility or article, valuable thing, service, larger amount obtained or less amount disposed of shall be of the value of more than $100.00, such person shall be guilty of a felony, punishable by imprisonment in the state prison not more than 10 years or by a fine of not more than $5,000.00."

The offense described in count two of the information filed against defendant is defined in M.C.L. § 750.131; M.S.A. § 28.326:

"Any person who, with intent to defraud, shall make or draw or utter or deliver any check, draft or order for [87 MICHAPP 301] the payment of money, to apply on account or otherwise, upon any bank or other depository, knowing at the time of such making, drawing, uttering or delivering, that the maker, or drawer, has not sufficient funds in or credit with such bank or other depository, for the payment of such check, draft, or order, in full, upon its presentation, or any person who, with the intent to defraud, shall make, draw, utter or deliver any check, draft or order for the payment of money to apply on account or otherwise, upon any bank or other depository and who shall not have sufficient funds for the payment for same when presentation for payment is made to the drawee, except where such lack of funds is due to garnishment, attachment, levy, or other lawful cause, and such fact was not known to the person who made, drew, uttered or delivered the instrument at the time of so doing, shall, if the amount payable in the check exceeds $50.00, be guilty of felony, punishable by imprisonment in the county jail not more than 1 year or by a fine of not more than $500.00. If the amount payable in the check is $50.00 or less, such person shall for the first offense be guilty of a misdemeanor; and for the second offense, the same being charged as a second offense, shall be guilty of a misdemeanor punishable by imprisonment in the county jail not more than 6 months or by a fine of not more than $250.00; and for a third and subsequent offense, the same being charged as a third or subsequent offense, shall be guilty of a felony, punishable by imprisonment in the county jail not more than 1 year or by a fine of not more than $500.00."

The relevant facts are not disputed. The charges arose out of defendant's presentation of an insufficient funds check to the National Bank of Jackson in the amount of $150. The check was drawn on the Onsted Bank. At the plea-taking proceedings defendant testified that, when he presented the check to the National Bank of Jackson, he knew that the Onsted account did not have sufficient funds to cover it and that he intended to defraud the National Bank of Jackson.

[87 MICHAPP 302] On appeal defendant challenges the adequacy of the factual basis supporting his conviction of obtaining money by false pretenses. We agree that the requisite factual basis was not established.

Prosecuting attorneys have broad discretion in determining under which of two possible applicable statutes a prosecution shall be instituted. People v. Lombardo, 301 Mich. 451, 3 N.W.2d 839 (1942); People v. Heber, 42 Mich.App. 582, 202 N.W.2d 571 (1972). Prosecutorial discretion is not, however, unlimited. People v. Birmingham, 13 Mich.App. 402, 406-407, 164 N.W.2d 561 (1968).

It is necessary to distinguish between cases where the two possible applicable statutes prohibit the same conduct and cases where the statutory crimes are distinct. In People v. Sanford, 65 Mich.App. 101, 237 N.W.2d 201 (1975), Aff'd 402 Mich. 460, 265 N.W.2d 1 (1978), for example, the defendants argued that the prosecutor had abused his discretion in charging them with assault with intent to rob while unarmed, M.C.L. § 750.88; M.S.A. § 28.283, instead of with unarmed robbery, M.C.L. § 750.530; M.S.A. § 28.798. The defendants contended that it was a denial of equal protection to have two statutes with different penalties prohibiting the same conduct. Because the assault charge required an assault, whereas the robbery charge required either an assault or force and violence, the two statutes prohibited different conduct. The prosecutor, therefore, had discretion to charge under either statute. Also see People v. Graves, 31...