People v. Mallory, Docket No. 53843
| Citation | 314 N.W.2d 716,111 Mich.App. 629 |
| Decision Date | 26 January 1982 |
| Docket Number | Docket No. 53843 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Donald Eugene MALLORY, Defendant-Appellant. |
| Court | Court of Appeal of Michigan (US) |
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Edward Reilly Wilson, Chief Appellate, Asst. Pros. Atty., and William T. Morris, Asst. Pros. Atty., for the People.
Robert L. Ziolkowski, Detroit, for defendant-appellant on appeal.
Before KAUFMAN, P. J., and MAHER and RILEY, JJ.
In a single plea proceeding, defendant pled guilty to three counts of armed robbery, M.C.L. § 750.529; M.S.A. § 28.797, and two counts of possession of a firearm while in the course of a felony, M.C.L. § 750.227b; M.S.A. § 28.424(2). The charges arose out of two separate incidents. Defendant was subsequently sentenced to concurrent prison terms of from six to ten years on all of the armed robbery counts and an additional two years on both felony-firearm counts, to run concurrently with each other but consecutively to the armed robbery sentences. Defendant now appeals as of right.
Defendant raises several issues on appeal. One claim, however, is dispositive of the matter and requires reversal. Defendant asserts that his guilty plea was based on an illusory bargain since it was based in part on the prosecutor's representation that he would not file a habitual-offender complaint against defendant. At the time of defendant's plea the prosecutor was already precluded by People v. Fountain, 407 Mich. 96, 282 N.W.2d 168 (1979), from filing such a complaint.
The decision in Fountain set forth three procedural rules regarding the filing of habitual-offender complaints:
" '(1) a prosecutor who knows a person has a prior felony record must promptly proceed, if at all, against the person as an habitual offender, (2) the prosecutor is not foreclosed from proceeding against a person as an habitual offender after conviction on the current offense provided he is unaware of a prior felony record until after conviction, and (3) the habitual-offender information should be filed simultaneously with the informations charging the current felonies where the prosecutors' respective offices prosecuted the prior felonies and must be presumed to have known of the defendants' prior felony records.' " People v. Westbrook, 102 Mich.App. 296, 298, 301 N.W.2d 511 (1980). (Emphasis in original.)
In the instant case, the prosecution was constrained by the simultaneous filing requirement.
We realize that other members of this Court, when faced with this identical question, have chosen to write the simultaneous filing requirement out of Fountain. See, e.g., People v. Leitner, 105 Mich.App. 681, 307 N.W.2d 405 (1981). This we cannot do. Until the Supreme Court chooses to alter the strict language of Fountain, we are bound to follow its mandate. 1
The transcript of defendant's guilty plea contains the following colloquy:
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...168 (1979). I agree and would reverse. The Court of Appeals is split on the correct interpretation of Fountain. People v. Mallory, 111 Mich.App. ---, 314 N.W.2d 716 (1981), People v. Mohead, 98 Mich.App. 612, 295 N.W.2d 910 I conclude that generally the prosecutor must file the habitual off......
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People v. Cisco, Docket No. 51114
...as it was based in part on the prosecution's promise not to file a supplemental habitual offender complaint. People v. Mallory, 111 Mich.App. ---, 314 N.W.2d 716 (1981). * Richard I. Cooper, 51st Judicial Circuit Judge, sitting on Court of Appeals by assignment pursuant to Const.1963, Art. ......
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People v. Mallory
...is considered, and, pursuant to GCR 1963, 853.2(4), in lieu of granting leave to appeal, we REVERSE the judgment of the Court of Appeals, 314 N.W.2d 716, and REMAND the case to the Court of Appeals for consideration of the remaining issues raised by the defendant. People v. Fountain, 407 Mi......