People v. Radofski

• Citation: 199 Mich.App. 257,500 N.W.2d 772
• Decision Date: 06 April 1993
• Docket Number: Docket No. 149363
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Devin RADOFSKI, Defendant-Appellee.
• Court: Court of Appeal of Michigan (US)

Page 772

500 N.W.2d 772

199 Mich.App. 257

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Devin RADOFSKI, Defendant-Appellee.

Docket No. 149363.

Court of Appeals of Michigan.

Submitted March 11, 1993, at Lansing.

Decided April 6, 1993, at 9:20 a.m.

Released for Publication June 24, 1993.

Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., Richard Thompson, Pros. Atty., Michael J. Modelski, Chief, Appellate Div., and Mary M. Stiel, Asst. Pros. Atty., for the People.

Kathryn L. Simmons, Madison Heights, for defendant-appellee on appeal.

Before BRENNAN, P.J., and HOOD and TAYLOR, JJ.

PER CURIAM.

The prosecutor appeals from the trial court's dismissal of the supplemental information charging defendant with being a third-felony habitual offender, M.C.L. § 769.11; M.S.A. § 28.1083. We reverse.

Defendant was originally charged with assault with intent to inflict great bodily harm less than murder, M.C.L. § 750.84; M.S.A. § 28.279. ¹ He was convicted by a jury of felonious assault, M.C.L. § 750.82; M.S.A. § 28.277. The trial court then discharged the jury without objection from either party.

Fifty-four days later, defendant filed a motion to dismiss the habitual-offender supplemental information, arguing that trial of that charge by a different jury was barred on double jeopardy grounds. The trial court agreed. The prosecutor's motion for reconsideration was denied. Defendant was finally sentenced, three months after his original conviction, to a term of two to ten years.

We find that this case is covered by the reasoning of People v. Vinston, 120 Mich.App. 422, 327 N.W.2d 495 (1982), with which we agree. In Vinston, as here, the jury was discharged without objection following trial on the principal charge. The defendant was sentenced about a month and a half later, again without mention of the still-pending habitual-offender charge. The defendant pleaded guilty of the supplemental charge almost three months later, reserving the right to appeal the double jeopardy issue. This Court affirmed, holding that there was no double jeopardy bar to trial of the habitual-offender charge under those circumstances because there had been no factual resolution of its merits.

The Vinston panel relied on Judge MacKenzie's dissent in People v. Walters, 109 Mich.App. 734, 741, 311 N.W.2d 461 (1981), on the basis of which the Walters case was reversed and remanded by the Supreme Court, 412 Mich. 879, 313 N.W.2d 283 (1981). In Walters, the habitual-offender information was dismissed where the jury that convicted the defendant of the principal charge had been discharged before the defendant's arraignment on the supplemental information. Judge MacKenzie disagreed with the majority's affirmance of that dismissal, stating, first, that the defendant's failure to object to the lack of an arraignment waived the issue and, second, that because there had been no adjudication of the facts underlying the habitual-offender charge, there was no double jeopardy bar to trial on that charge. See also Vinston, supra 120 Mich.App. at 428, 327 N.W.2d 495.

We acknowledge that, in People v. Johnson, 94 Mich.App. 551, 555-556, 288 N.W.2d 456 (1980), a panel of this Court stated that the Double Jeopardy Clause, Const. 1963, art. 1, § 15, would bar trial of a habitual-offender charge if the jury on the principal charge was dismissed without the defendant's consent. We agree with the prosecutor that such statements are dicta--albeit often repeated dicta--because the jury in Johnson was not in fact discharged, but instead went on to try the habitual-offender charge.

We agree with the Vinston Court that, while it is often said that trials on a principal charge and on an habitual-offender charge are "unitary" proceedings,...