People v. Smith, Docket No. 77-1654

• Decision Date: 12 May 1978
• Docket Number: Docket No. 77-1654
• Citation: 269 N.W.2d 469,84 Mich.App. 376
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Raymond C. SMITH, Defendant-Appellant. 84 Mich.App. 376, 269 N.W.2d 469
• Court: Court of Appeal of Michigan — District of US

Page 469

269 N.W.2d 469

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Raymond C. SMITH, Defendant-Appellant.

Docket No. 77-1654.

84 Mich.App. 376, 269 N.W.2d 469

Court of Appeals of Michigan.

May 12, 1978.

Released for Publication Sept. 18, 1978.

[84 MICHAPP 377] Sisk & Robson, by Douglas J. Robson, East Lansing, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Peter D. Houk, Pros. Atty., Michael G. Woodworth, Asst. Pros. Atty., for plaintiff-appellee.

Before D. E. HOLBROOK, Jr., P. J., and J. H. GILLIS and EVERETT, ^* JJ.

PER CURIAM.

Defendant was convicted of welfare fraud over $500 by an Ingham County jury on January 5, 1977. He was sentenced on February 25, 1977, to a term of 14 months to 4 years in prison. He appeals as of right seeking reversal or, in the alternative, a remand to the lower court for a determination of the actual amount of the fraud and for resentencing.

Defendant's wife and child were receiving an ADC grant. When defendant returned home, the [84 MICHAPP 378] grant was increased. The presence of an unemployed father affects the amount of the ADC grant. M.C.L. § 400.56d; M.S.A. § 16.456(4).

Defendant was convicted of misrepresenting his employment status to the Department of Social Services. M.C.L. § 400.60(2); M.S.A. § 16.460(2) places an affirmative duty on anyone "receiving relief" under the Social Welfare Act, M.C.L. § 400.1 Et seq.; M.S.A. § 16.401 Et seq. to report any change in his circumstances which would decrease the amount of the grant. Since defendant and his family received $1,447 during the period charged in the information, he was convicted of welfare fraud over $500.

Defendant first argues that he was not "receiving relief" under the act and, therefore, had no duty to report the change in his circumstances. People v. Akerley, 73 Mich.App. 321, 325, 251 N.W.2d 309 (1977). However, there was sufficient evidence produced at trial for a jury to determine otherwise. Defendant resided at home at least part of the time and the rent for that home came from the Department of Social Services. Additionally, he signed two re-determination of eligibility forms indicating he was living in the home and that he was receiving no income or unemployment compensation.

Defendant next contends that the proper test in determining whether he was guilty of a felony or a misdemeanor is the additional amount added to the grant from defendant's failure to perform his statutory duties. The circuit court considered only the total amount of the grant.

M.C.L. § 400.60; M.S.A. § 16.460 provides in part that:

"Any person who by means of wilful false statement [84 MICHAPP 379] or representation or by impersonation or other fraudulent device Obtains or attempts to obtain, or aids or abets any person to obtain (a) assistance or relief to which he is not entitled; or (b) a larger amount of assistance or relief than that to which he is justly entitled; or any officer or employee of a county, city or district department of social welfare who authorizes or recommends relief to persons known to him to be ineligible or to have fraudulently created their eligibility; or any person who knowingly buys or aids or abets in buying or in disposal of the property of a person receiving assistance or relief without the consent of the director or supervisor of the state department, shall, if the...