People v. McCartney

• Decision Date: 22 May 1985
• Docket Number: Docket No. 80935
• Citation: 141 Mich.App. 591,367 N.W.2d 865
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Linda McCARTNEY, Defendant-Appellant. 141 Mich.App. 591, 367 N.W.2d 865
• Court: Court of Appeal of Michigan — District of US

Page 865

367 N.W.2d 865

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Linda McCARTNEY, Defendant-Appellant.

Docket No. 80935.

141 Mich.App. 591, 367 N.W.2d 865

Court of Appeals of Michigan.

Submitted Oct. 15, 1984.

Decided March 12, 1985.

Released for Publication May 22, 1985.

[141 MICHAPP 593] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., and Nathan T. Fairchild, Pros. Atty., for the People.

William S. Kenyon, Adrian, for defendant-appellant on appeal.

Before DANHOF, C.J., and BRONSON and R.B. BURNS, JJ.

ON REMAND

PER CURIAM.

The facts of the instant case are set forth in People v. McCartney, 132 Mich.App 547, 348 N.W.2d 692 (1984), and are not restated here. In that case, upon defendant's interlocutory appeal from the trial court's denial of her motion to dismiss, we held that defendant could not be tried for embezzlement by a trustee of a sum in excess of $100, M.C.L. Sec. 750.174; M.S.A. Sec. 28.371, without violating double jeopardy because defendant had previously had a contempt adjudication entered against her. We stated that the contempt proceedings were criminal in nature and, as such, double-jeopardy protections applied. 132 Mich.App. 555-557, 348 N.W.2d 692. Upon delayed application for leave to appeal to the Supreme Court and in lieu of granting such, the Supreme Court vacated this Court's judgment and remanded "for reconsideration in the light of [141 MICHAPP 594] People v. Robideau, 419 Mich. 458; 355 NW2d 592 (1984)". 419 Mich. 941, 355 N.W.2d 616 (1984).

The focus of our prior opinion was on determining whether the contempt adjudication was criminal in nature. We held that it was and presently adhere to that determination. See Fittante v. Schultz, 20 Mich.App. 259, 174 N.W.2d 29 (1969). However, we noted that "[t]he double jeopardy bar against dual prosecution for the same act is thus applicable under the test of Blockburger v. United States, 284 US 299, 304; 52 SCt 180, 182; 76 LEd 306, 309 (1932), and Michigan's 'same transaction' test, People v. White, 390 Mich 245, 258; 212 NW2d 222 (1973); Crampton v 54-A Dist. Judge, 397 Mich 489, 499; 245 NW2d 28 (1976)". 132 Mich.App. 557, fn. 11, 348 N.W.2d 692. In light of the Supreme Court's subsequent disavowal of the Blockburger test in Robideau, supra, 419 Mich. p. 486, 355 N.W.2d 29, we must reconsider whether defendant's double jeopardy protections were violated in the instant case.

The import of Robideau, supra, in conjunction with the Supreme Court's decision in People v. Wakeford, 418 Mich. 95, 341 N.W.2d 68 (1983), is clear: Legislative intent is the crucial aspect of double jeopardy analysis. Although, as noted in Robideau, supra, 419 Mich. p. 472, 355 N.W.2d 29, much confusion over double jeopardy has resulted from failure to identify the nature of the protection involved, each protection seeks to divine legislative intent. Compare Robideau, supra (single prosecution, two statutes); Wakeford, supra, (single prosecution and one statute, but multiple victims); and People v. White, supra, (successive prosecutions under separate statutes). The instant case involves multiple prosecutions under separate statutes. Accordingly, White, supra, and the "same transaction" test provide the starting point of our analysis.

[141 MICHAPP 595] Since White, supra, 390 Mich. p. 259, 212 N.W.2d 222, the same transaction test for multiple-prosecution cases has been stated in terms of whether the crimes "were committed in a continuous time sequence and display a single intent and goal". This test, however, was further refined in Crampton v. 54-A District Judge, supra, 397 Mich. p. 502, 245 N.W.2d 28, in which the Supreme Court held that where, as here, one or more of the statutory offenses is not a criminal intent crime, the inquiry is whether the offenses were part of the same criminal episode and whether they involve "laws intended to prevent the same or similar harm or evil * * *." ¹ In other words, we must ascertain the intent of the Legislature in enacting M.C.L. Sec. 600.1701; M.S.A. Sec. 27A.1701 as well as in enacting M.C.L. Sec. 750.174; M.S.A. Sec. 28.371 (embezzlement by a trustee of a sum in excess of $100), and determine whether the Legislature intended that multiple punishments be imposed for such embezzlement when it occurs in a manner which also subjects the defendant to criminal contempt proceedings.

In Robideau, supra, 419 Mich. pp. 487-488, 355 N.W.2d 592, the Supreme Court noted several general, but nonexhaustive principles on determining legislative intent. In the present case, however, the Legislature has provided specific guidance on the matter. M.C.L. Sec. 600.1745; M.S.A. Sec. 27A.1745 states:

"Sec. 1745. Persons proceeded against according to the provisions of this chapter, shall also be liable to indictment for the same misconduct, if it be an indictable offense; but the court before which a conviction shall be had on such indictment shall take into consideration the punishment before inflicted, in imposing sentence."

[141 MICHAPP 596] This provision evinces a clear legislative intent to impose separate punishment on a person who has been adjudged in contempt of court if those actions which constituted contempt are also violative of some criminal provision. As the Supreme Court noted in a case where the crime of perjury was the subject of contempt proceedings, "the one act constitut[es] two...