People v. McEntyre

• Decision Date: 19 October 1983
• Docket Number: Docket No. 59205
• Citation: 339 N.W.2d 538,127 Mich.App. 731
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Craig McENTYRE, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 538

339 N.W.2d 538

127 Mich.App. 731

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Craig McENTYRE, Defendant-Appellant.

Docket No. 59205.

Court of Appeals of Michigan.

Submitted Nov. 15, 1982.

Decided Aug. 2, 1983.

Released for Publication Oct. 19, 1983.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., William L. Cahalan, Pros. Atty., Edward Reilly Wilson, Chief Appellate Asst. Pros. Atty., and Janice M. Joyce Bartee, Asst. Pros. Atty., for the People.

James R. Neuhard, State Appellate Defender by Kim Robert Fawcett, Asst. State Appellate Defender, for defendant-appellant.

Before WAHLS, P.J., and KELLY and LAMBROS ^*, JJ.

PER CURIAM.

Defendant was convicted of breaking and entering an occupied dwelling with the intent to commit larceny. M.C.L. Sec. 750.110; M.S.A. Sec. 28.305. He was placed on probation. After finding that defendant had violated the terms of his probation, the sentencing judge revoked defendant's probation and sentenced him to a prison term of 7 1/2 to 15 years. Defendant appeals by right.

Defendant first claims that his acquittal of criminal charges based on a set of facts precluded the revocation of his probation based on the same set of facts. His argument is based on principles of collateral estoppel to the extent that those principles are embodied in the Double Jeopardy and Due Process clauses of the state and federal constitutions. Defendant specifically relies on the decision of the Illinois Supreme Court in People v. Grayson, 58 Ill.2d 260, 319 N.E.2d 43 (1974), cert. den. 421 U.S. 994, 95 S.Ct. 2001, 44 L.Ed.2d 484 (1975).

We believe that the position taken by the Illinois Court should not be adopted in Michigan. In a majority of jurisdictions, acquittal of criminal charges does not bar revocation of probation based on the same facts. State v. Jameson, 112 Ariz. 315, 541 P.2d 912, 76 A.L.R.3d 556 (1975); In re Coughlin, 16 Cal.3d 52, 545 P.2d 249, 127 Cal.Rptr. 337 (1976); Russ v. State, 313 So.2d 758 (Fla.1975), cert. den. 423 U.S. 924, 96 S.Ct. 267, 46 L.Ed.2d 250 (1975); Johnson v. State, 240 Ga. 526, 242 S.E.2d 53 (1978), cert. den. 439 U.S. 881, 99 S.Ct. 221, 58 L.Ed.2d 194 (1978); Jackson v. State, Ind.App., 420 N.E.2d 1239 (1981); Scott v. State, 238 Md. 265, 208 A.2d 575 (1965); Moore v. State, 644 P.2d 1079 (Okl.Cr.App.1982); State v. Fortier, 20 Or.App. 613, 533 P.2d 187 (1975); Commonwealth v. Brown, 281 Pa.Super. 348, 422 A.2d 203 (1980); State v. Delp, 614 S.W.2d 395 (Tenn.Cr.App.1980); Bradley v. State, 608 S.W.2d 652 (Tex.Cr.App.1980); Marshall v. Commonwealth, 202 Va. 217, 116 S.E.2d 270 (1960); State v. Cyganowski, 21 Wash.App. 119, 584 P.2d 426 (1978). See also the discussion in People v. Buckner, 103 Mich.App. 301, 302 N.W.2d 848 (1980), and People v. Nesbitt, 86 Mich.App. 128, 136, 272 N.W.2d 210 (1978). We agree with the courts in the majority of jurisdictions that have considered the question that the major stumbling block to acceptance of defendant's theory is the higher burden of proof imposed in a criminal trial.

Defendant's second claim on appeal is that the trial judge failed to find a violation of law upon which revocation of his probation could be based. We agree with defendant that the findings of fact made by the trial judge are not very clear, but conclude that a remand for more detailed findings would be useless. The findings must be read in the context of the proofs presented and the theories argued by counsel at the revocation hearing. We believe that the judge expressed in his findings of fact his belief that the proofs showed that defendant was guilty of either larceny or receiving and concealing stolen property in connection with his possession of the victim's property shortly after the murder. We do not think that defendant's explanation of the judge's findings is plausible.

The prosecutor concedes that defendant is entitled...