People v. Marshall, Docket No. 11324

• Decision Date: 25 May 1972
• Docket Number: Docket No. 11324,No. 2,2
• Citation: 41 Mich.App. 66,199 N.W.2d 521
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. George MARSHALL, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 521

199 N.W.2d 521

41 Mich.App. 66

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. George MARSHALL, Defendant-Appellant.

Docket No. 11324.

Court of Appeals of Michigan, Division No. 2.

May 25, 1972.

Released for Publication Aug. 11, 1972.

Denis F. Jodis, Hudson, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lawrence, L. Hayes, Jr., Pros. Atty., for plaintiff-appellee.

Before McGREGOR, P.J., and LEVIN and TARGONSKI, ^* JJ.

McGREGOR, Presiding Judge.

Defendant was first convicted of a felony by a plea of guilty to the charge of statutory rape, on October 10, 1955. On July 4, 1961, defendant killed his wife and was charged with first-degree murder. He was not tried on this charge, as he was found incompetent to stand trial and was, therefore, held in custody at Ionia for 9 years. On April 22, 1970, a jury found him guilty of the lesser included offense of manslaughter, M.C.L.A. § 750.321; M.S.A. § 28.553, and he was sentenced to 14 1/2 to 15 years, with credit for the time he spent at Ionia. On or about October 5, 1970, defendant was granted a certificate of discharge from the department of corrections; however, a short time prior to his discharge, the department of corrections contacted the prosecuting attorney for Hillsdale County (where he had been convicted) and informed him of the pending release of the defendant.

On September 1, 1970, the Hillsdale County prosecutor filed a supplemental information, charging the defendant as a second offender, and asked the circuit court to impose sentence as provided in M.C.L.A. § 769.10; M.S.A. § 28.1082. Defendant was tried on this supplemental information on December 30, 1970, and found guilty, and was sentenced to a term of imprisonment of 21 to 22 1/2 years. Defendant moved to quash the information, both at a hearing on October 28, 1970, and again at the trial of the people's proofs. Both motions were denied and this appeal of right follows.

The first question on appeal is whether the prosecutor may file a supplemental information charging defendant as a second felony offender, under the habitual criminal sections of the code of criminal procedure, subsequent to defendant's second felony conviction, where the prosecutor was aware of defendant's first conviction prior to the second conviction. Defendant contends that, as the prosecutor was aware of his prior felony conviction, the prosecutor failed to comply with the habitual offender statute, because he did not bring the charge timely. Defendant contends that People v. Stratton, 13 Mich.App. 350, 164 N.W.2d 555 (1968), makes it mandatory on the prosecutor where he knows of the defendant's prior conviction, to file a supplemental information charging the defendant as a second offender, concurrent with the current charge. M.C.L.A. § 769.13; M.S.A. § 28.1085 provides in part:

'If at any time after conviction and either before or after sentence it shall appear that a person convicted of a felony has previously been convicted of crimes as set forth in any of the 3 foregoing sections, the prosecuting attorney of the county in which such conviction was had, in his discretion, may file a separate or supplemental information in such cause accusing the said person of such previous convictions.'

In People v. Stratton, Supra, 355--356, 164 N.W.2d 557--558, this Court said:

'In our earlier opinion we reasoned, reading sections 10 and 13 together, that the procedure to be followed in charging one as a prior felony offender was prescribed in section 13 and that the procedure in section 13 set forth was required to be followed whenever it was desired to increase the penalty pursuant to the '3 foregoing sections,' I.e., section 10, concerning second felony, section 11, concerning third felony, and section 12, concerning fourth felony.

'Section 13 then appeared to us to provide the exclusive procedure. And that section provides the prosecutor could only take action 'after conviction.' (Emphasis supplied.) Section 13 also provides that if the defendant pleads not guilty to the recidivist charge, 'a jury of 12 jurors Shall be impaneled' and that 'the Usual practice in the trial of criminal cases shall be followed in the impaneling of such jury and the trial of said issue and the prosecuting officer and the accused shall each be allowed 5 peremptory challenges.' (Emphasis supplied.) We concluded that Stratton was entitled to a new and separate jury because that is what the statute appeared then to us expressly to require.

'Our earlier opinion overlooked the last sentence of section 12, which section concerns the increased penalty for those accused persons convicted as Fourth felony offenders. Stratton was charged as a second felony offender. The last sentence of section 12 reads:

"A person to be punishable under this and the last 2 preceding sections need not have been indicted and convicted as a previous offender in order to receive the increased punishment therein provided, but may be proceeded against as provided in the following section.'

'The 'following section' is section 13.

'Implicit in the language just quoted--'need not have been indicted and convicted as a previous offender' and 'may be proceeded against as provided in the following section'--is the concept that the procedure set forth in the 'following section,' section 13, need not be followed and that an accused person may be punished pursuant to sections 10, 11 and 12 when 'indicted and convicted' without regard to section 13.

'Thus, as we now read sections 10, 11, 12 and 13, they contemplate 2 separate situations and procedures to be followed when the prosecutor desires to make possible the meting out of an increased penalty pursuant to the habitual criminal sections of the code of criminal procedure. The procedure set forth in section 13 is to be followed whenever it appears to the prosecutor 'after conviction' of the current charge that the felon has a prior felony record. However, where it appears to the prosecutor before conviction of the current charge that the accused person is a prior felon, the accused person is to be informed against as a prior offender prior to conviction on the current charge; the procedure set forth in section 13 need not be followed.'

In In re Brazel, 293 Mich. 632, 639--641, 292 N.W. 664, 667--668 (1940), the Michigan Supreme Court discussed section 13 as follows:

'We must conclude that prior convictions can be charged in an information for a subsequent offense where the prosecutor has knowledge thereof on filing the information, or later in separate proceedings by a supplemental information under 3 Comp.Laws 1929, Sec. 17341 (Stat.Ann. § 28.1085), where such officer acquires such knowledge or information subsequent to conviction.

'It is the contention of the respondent that it was mandatory for the prosecutor to proceed by supplemental petition in order to augment his punishment for prior convictions by supplemental information under the provisions of (3 Comp.Laws 1929), section 17341 (Stat.Ann. § 28.1085).

'We do not think respondent's rights could be any more safely guarded by supplemental information than was done in the instant case. Each of the three prior convictions were set forth in detail in the information, as well as in the complaint, examination thereon being expressly waived. All of the proceedings show that he was definitely informed of the precise nature of the accusations made against him and that he was conversant with the law with reference to his rights as a forth offender.

'We hold that it is not necessary to file a supplemental information where said previous convictions are known to the prosecuting attorney at the time of the filing of the information and are fully detailed therein, and that the intent and purpose of the statute are fully served by setting forth in the original information the previous convictions in detail, as well as the offense charged therein. * * *

'Unquestionably the statute in question was enacted for the protection of a convicted person in the event he should be brought before the court on a supplemental information, as authorized by said section, and given the right to a trial by a jury or before the court, if he preferred, and to require the People to prove the identity of the accused as related to the former convictions. We also hold that said section was added to enable the prosecutor to file his supplemental information where he discovers such prior convictions so that a sentence might be revised to...