People v. Nicolaides, Docket No. 85869

• Decision Date: 04 April 1986
• Docket Number: Docket No. 85869
• Citation: 383 N.W.2d 620,148 Mich.App. 100
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Deano NICOLAIDES, Defendant-Appellee. 148 Mich.App. 100, 383 N.W.2d 620
• Court: Court of Appeal of Michigan — District of US

Page 620

383 N.W.2d 620

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Deano NICOLAIDES, Defendant-Appellee.

Docket No. 85869.

148 Mich.App. 100, 383 N.W.2d 620

Court of Appeals of Michigan.

Submitted Oct. 29, 1985.

Decided Dec. 17, 1985.

Released for Publication April 4, 1986.

[148 MICHAPP 100] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., L. Brooks Patterson, Pros. Atty., Robert C. Williams, Chief Appellate Counsel, and Graham K. Crabtree, Asst. Pros. Atty., for the People.

[148 MICHAPP 101] S. James Clarkson, Southfield, for defendant-appellee.

Before MAHER, P.J., and J.H. GILLIS and WAHLS, JJ.

PER CURIAM.

On motion for rehearing of this Court's order of September 27, 1985, peremptorily reversing a decision of the trial court on the prosecutor's application for leave to appeal pursuant to MCR 7.205(D)(2), the parties being in agreement that the issue is one which frequently arises in the criminal trial courts of this state, we have elected to resolve this matter through issuance of this per curiam opinion. Manuel v. Dep't of Corrections, 140 Mich.App. 356, 357, 364 N.W.2d 334 (1985).

In an original complaint filed by the Oakland County Prosecuting Attorney in 48th District Court, defendant was charged with operating a motor vehicle under the influence of intoxicating liquor, in violation of Sec. 625(1) of the Michigan Vehicle Code, M.C.L. Sec. 257.625(1); M.S.A. Sec. 9.2325(1) and with operating a motor vehicle while having a blood alcohol content of .10% or higher, in violation of Sec. 625(2) of the Michigan Vehicle Code, M.C.L. Sec. 257.625(2); M.S.A. Sec. 9.2325(2).

While the offenses are defined in separate subparagraphs of Sec. 625 of the Michigan Vehicle Code, the results of a conviction under either subparagraph are indistinguishable in terms of the range of sentencing alternatives and restrictions on driving privileges.

The district court granted defendant's motion to require the prosecutor to elect between the counts, i.e., to proceed on either one count or the other exclusively. The Oakland County Circuit Court denied the prosecutor's interlocutory application for leave to appeal, following which the prosecutor [148 MICHAPP 102] filed the present application for leave to appeal in this Court.

As a general rule, distinct criminal charges which do not arise out of the same transaction cannot be concatenated in one information or other charging document. Correlatively, it is generally permissible to charge in a single information all offenses which do arise out of a single criminal transaction or occurrence.

Prosecutorial elections between counts which arise from the same transaction but charge different offenses may not be required:

"Defendant also complains that the information, warrant, and complaint are bad for duplicity, charging two offenses, viz: transporting spirituous and intoxicating liquors, and having the same in possession, and that the court was in error in not granting defendant's motion made at the beginning of the trial that the prosecution elect upon which charge it would proceed.

" 'While it is true that, as a general rule, where several cognate acts are forbidden in one section of a statute disjunctively, the indictment may ordinarily charge them conjunctively in one count, if the reference is to one transaction, for which a single penalty is incurred, it is also true that where each forbidden act may be set off as a distinct offense, but several are united, the count is good in such case as for one combined act.' People v Keefer, 97 Mich [15, 17; 56 NW 105 (1893)].

" 'Election between counts cannot be required on the ground that distinct offenses are charged, where they are committed by the same acts, at the same time, and the same testimony must be relied on for conviction.' People v Warner, 201 Mich [547, 553; 167 NW 878 (1918)].

"See, also Vansickle v People, 29 Mich 61 [1874]; People v McKinney, 10 Mich 54 [1862]; People v Dyer, 79 Mich 480 [44 NW 937 (1890)]; People v Sweeney, 55 Mich 586 [22 NW 50 (1885)]; People v Summers, 115 Mich 537 [73 NW 818 (1898)].

[148 MICHAPP 103] "The testimony related to one transaction. In such a case, under the authorities above cited, no election is necessary for defendant's protection. Defendant's contentions in this regard are not sustained." People v. Grabiec, 210 Mich. 559, 562-563, 178 N.W. 55 (1920).

Ordinarily, a defendant's rights can be protected by limiting the prosecution to one final conviction. See, e.g., People v. Wilder, 411 Mich. 328, 308 N.W.2d 112 (1981). In such situations, as long as there is evidence on each of several alternative theories, the prosecution need make no election until after the jury returns its verdict. People v. Bufkin (On Rehearing), 48 Mich.App. 290, 293, 210 N.W.2d 390 (1973), aff'd 395 Mich. 434, 236 N.W.2d 500 (1975).

In the present case, the prosecutor has filed a two-count complaint. This is improper, since only one statute is involved.

What the prosecutor may do, however, in the context of a single-count complaint, is to list alternative theories. Thus, in People v. Willie Johnson, 406 Mich. 320, 331, 279 N.W.2d 534 (1979), the Court held:

"The fact that a sexual penetration happens to be accompanied by more than one of the aggravating circumstances enumerated in the statute may well ease the burden upon the prosecution in attaining a...