People v. Stoudemire

Decision Date01 April 1985
Docket NumberDocket No. 78144
Citation140 Mich.App. 687,365 N.W.2d 214
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. Wesley Jerome STOUDEMIRE, Defendant-Appellant. 140 Mich.App. 687, 365 N.W.2d 214
CourtCourt of Appeal of Michigan — District of US

[140 MICHAPP 688] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., and Joseph P. Greenleaf, Chief Appellate Asst. Pros. Atty., for the people.

William A. Worth, Jr., Jackson, for defendant-appellant on appeal.

Before BRONSON, P.J., and HOOD and SHEPHERD, JJ.

BRONSON, Presiding Judge.

Defendant was originally charged with assaulting a prison guard, M.C.L. Sec. 750.197c; M.S.A. Sec. 28.394(3), and as a habitual offender-fourth offense, M.C.L. Sec. 769.12; M.S.A. Sec. 28.1084. The supplemental information was predicated upon three prior felony convictions for breaking and entering, unarmed robbery and criminal sexual conduct. Both defendant and the prosecution agree that the three prior felony convictions were part of a single transaction and occurred at the same time and place.

Defendant brought a motion to dismiss the supplemental information, arguing that the three prior felony convictions arose out of a single transaction charged in one multi-count information. Defendant claims that the three prior convictions count only as one conviction under the habitual offender statute, and therefore any supplemental information should have charged defendant only as a second offender. Defendant's motion was denied by the trial court, and defendant thereafter pled guilty to the principal charge in exchange for dismissal of the supplemental information. The plea agreement was complied with, and defendant now appeals as of right from his plea-based conviction.

Defendant again argues that, under the habitual offender statute, the supplemental information [140 MICHAPP 689] should have charged him only as a second offender, as his three prior felony convictions arose out of a single transaction. Defendant relies for his argument on People v. Ross, 84 Mich.App. 218, 223, 224, 269 N.W.2d 532 (1978). In Ross, defendant argued that his two prior felony convictions for breaking and entering and possession of burglary tools could only count as one felony conviction under the habitual offender act because they arose out of the same transaction. This Court agreed with defendant, holding:

"In People v Lowenstein, 309 Mich 94, 100-101; 14 NW2d 794 (1944), the Michigan Supreme Court stated:

" 'Nor does the fact that defendant was convicted and sentenced on both counts result in conviction for two felonies such as to subject the defendant to additional punishment under the habitual criminal act. People v Podsiad [295 Mich 541, 546; 295 NW 257 (1940) ].'

See also, 2 Gillespie, Michigan Criminal Law & Procedure (2d ed), Sec. 761, p 975.

"In the instant case, the two counts did not charge inconsistent offenses. Both arose out of the same transaction, both were provable by the same testimony, only one time and place and subject being involved. It was error to allow the jury to count separately the 1969 breaking and entering and possession of burglary tools convictions as two prior felonies."

Accord, People v. Cavanaugh, 127 Mich.App. 632, 644, 339 N.W.2d 509 (1983). See also, People v. Sears, 124 Mich.App. 735, 744, 336 N.W.2d 210 (1983); People v. Chaplin, 102 Mich.App. 748, 753-754, 302 N.W.2d 569 (1980), rev'd on other grounds 412 Mich. 219, 313 N.W.2d 899 (1981).

In the instant case, the trial court correctly recognized that a careful examination of Lowenstein and Podsiad calls into question the precedential value attributed to them by the Ross Court. As the trial court stated:

[140 MICHAPP 690] "The issue addressed in Podsiad, supra, was whether the trial court erred in sentencing the defendant on two counts based upon the same act. The Supreme Court found no error in that the defendant was not prejudiced because the two sentences were to run concurrently.

"By way of argument it was contended that sentences upon each of the two counts should not be permitted because the defendant could then be charged as an habitual criminal. The Court dismissed this argument holding that the habitual criminal act is inapplicable to a pending prosecution wherein convictions are obtained on multiple counts. The act applies only to situations involving a subsequent conviction for an additional crime.

"The question raised in Lowenstein, supra, is idential to that addressed in Podsiad, supra. The two-count information charged the...

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