People v. Szpara, Docket No. 142607
| Decision Date | 06 October 1992 |
| Docket Number | Docket No. 142607 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Lawrence Richard SZPARA, Defendant-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
Frank J. Kelley, Attorney General, Thomas L. Casey, Sol. Gen., John D. O'Hair, Pros. Atty., Timothy A. Baughman, Chief of Research, Training, and Appeals, and Jeffrey Caminsky, Asst. Pros. Atty., for the People.
Patricia S. Slomski, Monroe, for defendant-appellant on appeal.
Before GRIBBS, P.J., and MARILYN KELLY and REILLY, JJ.
Defendant entered a plea of nolo contendere to one count of assault with intent to commit murder, M.C.L. Sec. 750.83; M.S.A. Sec. 28.278, and one count of breaking and entering an occupied dwelling with intent to commit a felony, M.C.L. Sec. 750.110; M.S.A. Sec. 28.305. He was sentenced to concurrent terms of six to twenty years of imprisonment for the assault conviction and six to fifteen years of imprisonment for the breaking and entering conviction. He now appeals as of right. We affirm.
The complainant in this case was defendant's wife. At the time of the incident underlying defendant's convictions the parties were going through a divorce. There was a court order prohibiting defendant from entering the premises that had been the marital home. Despite the court order, defendant broke into the home and severely beat the complainant.
Before being sentenced, defendant moved to withdraw his plea on the breaking and entering charge. The trial court refused to set aside defendant's plea.
Defendant claimed below, and now claims on appeal, that the prosecution could not charge him for breaking and entering his own home and that the exclusive remedy for the entry of his home in violation of the circuit court order is the contempt provision of M.C.L. Sec. 552.14(5); M.S.A. Sec. 25.94(5). Defendant is, therefore, challenging the prosecution's authority to proceed against him in the first place. See People v. Beckner, 92 Mich.App. 166, 168, 285 N.W.2d 52 (1979); People v. Kotesky, 190 Mich.App. 330, 331, 475 N.W.2d 473 (1991). Accordingly, defendant's claim is not waived by his plea of nolo contendere. Beckner, supra 92 Mich.App. at 169, 285 N.W.2d 52.
Nevertheless, we reject defendant's claim. M.C.L. Sec. 552.14; M.S.A. Sec. 25.94 provides that during a divorce proceeding a court may enter a preliminary injunction prohibiting a party from entering into certain premises. Furthermore, M.C.L. Sec. 552.14(5); M.S.A. Sec. 25.94(5) provides:
A person who refuses or fails to comply with an order issued pursuant to subsection (1) or (3) is subject to the contempt powers of the court and, if found guilty, shall be imprisoned for not more than 90 days and may be fined not more than $500.00.
The contempt provision for a violation of an injunction in a divorce proceeding and the breaking and entering statute serve different purposes. The contempt provision serves to vindicate the authority of the court, In re Contempt of Rochlin, 186 Mich.App. 639, 644, 465 N.W.2d 388 (1990), while the breaking and entering statute punishes a defendant for his criminal actions. "Thus, contempt is designed to punish offenses against the court and, as such, represents a separate and distinct offense from the criminal act which provides the basis for the contempt adjudication." People v. McCartney (On Remand), 141 Mich.App. 591, 596, 367 N.W.2d 865 (1985).
We also reject defendant's argument that he could not be charged with breaking and entering his own home. 1 In support of his argument, defendant cites People v. Eggleston, 186 Mich. 510, 515, 152 N.W. 944 (1915), and People v. Gauze, 15 Cal.3d 709, 125 Cal.Rptr. 773, 542 P.2d 1365 (1975). The Court in Eggleston, although not resolving the issue whether the trial court was required to give an instruction that the defendant could not be found guilty of breaking and entering property of which he was partial owner, stated:
If the evidence disclosed the fact that the respondent did in fact have a joint deed of the place into which he was charged with having feloniously broken and entered, and if by reason of the condition of the title to said property the respondent honestly believed that he had a right to enter, it is difficult to see how he could have entertained criminal intent, which is a necessary element of the crime charged. Eggleston, supra 186 Mich. at 515, 152 N.W. 944.
The court in Gauze found that the defendant in that case could not be guilty of burglarizing (entering with felonious intent) his own home. Gauze, supra 15 Cal.3d at 714, 125 Cal.Rptr. 773, 542 P.2d 1365. The court noted that the defendant's entry invaded no possessory right of habitation and more importantly that the defendant had an absolute right to enter the apartment. Id.
In this case, defendant had no such right. He was prevented by court order from entering the marital home. Acc...
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