People v. Vargo, Docket No. 68905

• Decision Date: 22 February 1985
• Docket Number: Docket No. 68905
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Stanley J. VARGO, Defendant-Appellant. 139 Mich.App. 573, 362 N.W.2d 840
• Court: Court of Appeal of Michigan — District of US

Page 840

362 N.W.2d 840

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Stanley J. VARGO, Defendant-Appellant.

Docket No. 68905.

139 Mich.App. 573, 362 N.W.2d 840

Court of Appeals of Michigan.

Submitted Jan. 9, 1984.

Decided Dec. 17, 1984.

Released for Publication Feb. 22, 1985.

[139 MICHAPP 575] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., G. Scott Stermer, Pros. Atty., and Jo Ellen O'Connor, Asst. Pros. Atty., for the People.

James M. Neuhard, State Appellate Defender by Peter Jon Van Hoek, Asst. State Appellate Defender, Detroit, for defendant-appellant.

Before ALLEN, P.J., and HOOD and WHITE ^*, JJ.

WHITE, Judge.

Defendant Stanley Vargo was convicted of welfare fraud over $500, M.C.L. Sec. 400.60(2); M.S.A. Sec. 16.460(2), following a jury trial in the Tuscola County Circuit Court. Defendant appeals as of right raising five issues for our consideration.

Defendant and his wife originally qualified for $440 per month in ADC benefits, paid in two equal installments each month. M.C.L. Sec. 400.60(2); M.S.A. Sec. 16.460(2) places an affirmative duty on anyone receiving benefits under the Social Welfare Act to report any change in circumstances which would decrease the amount of the grant. The information in the instant case alleged that during the period of August through October, 1980, defendant did not notify the Department of Social Services (DSS) that he was employed and therefore ineligible to receive benefits. Although no single benefit payment was in excess of $500, the total amount of benefits [139 MICHAPP 576] paid during that time period was between $1,500 and $1,700.

Defendant first argues that the prosecutor should have been precluded from aggregating benefit payments to reach the statutory $500 felony limit. We disagree.

In People v. Raymond Smith, 84 Mich.App. 376, 379, 269 N.W.2d 469 (1978), the defendant was convicted of welfare fraud over $500 under M.C.L. Sec. 400.60(2); M.S.A. Sec. 16.460(2). It is clear that the total amount of benefits received during the defendant's period of ineligibility were aggregated to reach the statutory $500 limit. The Court in Smith, however, did not directly address the issue of aggregation, and therefore we do so now.

Defendant herein relies on People v. Robinson, 97 Mich.App. 542, 296 N.W.2d 99 (1980). In Robinson, this Court reversed a conviction for larceny by false pretenses over $100, which was based on aggregating separate unemployment benefit checks in order to meet the statutory $100 limit. In ruling the aggregation improper, this Court noted that "defendant's individual and separate acts did not meet the criterion of the same transaction test, viz., occurring in a continuous time sequence and displaying a single intent and goal." Robinson, pp. 551-552. In so holding, this Court was specifically relying on the "same transaction" double jeopardy cases, set forth in People v. White, 390 Mich. 245, 212 N.W.2d 222 (1973), and Crampton v. 54-A District Judge, 397 Mich. 489, 245 N.W.2d 28 (1976). Contra, Anno., 22 A.L.R.4th 534, 604, Sec. 16. Since this Court's decision in Robinson, however, the Michigan Supreme Court has specifically disavowed this test. People v. Wakeford, 418 Mich. 95, 111, 341 N.W.2d 68 (1983).

More importantly, the defendant in Robinson was charged with larceny by false pretenses, not [139 MICHAPP 577] with welfare fraud. A conviction for larceny by false pretenses required a finding that defendant obtained her unemployment checks through a misrepresentation of a past or present fact. If defendant had not returned and made a new representation regarding her continued unemployment, she would not have received her unemployment check. This Court therefore held that

"as each act necessitated an additional false statement, they were not the result of a single intent and goal. Every two weeks, defendant had to make another false statement in order to get an additional separate and distinct benefits check. Since defendant could only receive another check after falsely swearing anew that she had not worked and thus was still eligible for unemployment benefits, each of the misrepresentations was distinct and separate." 97 Mich.App. 552, 296 N.W.2d 99.

The instant case, however, was brought under M.C.L. Sec. 400.60(2); M.S.A. Sec. 16.460(2), and therefore the reasoning in Robinson is inapplicable. The amount of benefits received by defendant in the instant case was determined by information initially supplied by defendant. If the DSS is never informed of a change in circumstances, it will continue making payments based upon the initial information. M.C.L. Sec. 400.60(2); M.S.A. Sec. 16.460(2) makes it a crime to neglect or refuse to provide certain information. It does not require that a false statement be made. Therefore, the instant case is significantly different from Robinson, where an essential element of the offense was always missing until a new representation was made concerning defendant's continued unemployment. Under the welfare fraud statute, once a person has neglected or refused to provide the information, the crime is complete except for determining the amount of relief improperly obtained. There is no basis for an argument that [139 MICHAPP 578] these are separate and distinct frauds. We therefore hold that the aggregation was proper, and defendant's motion to quash the information was properly denied.

Defendant next argues that he was denied due process when the prosecutor, after the charge was dismissed following the first preliminary examination, issued a new complaint and warrant on the same charge. This Court has recognized that repeated prosecutions of a defendant for the same offense may violate the defendant's right to due process. People v. Turmon, 128 Mich.App. 417, 340 N.W.2d 110 (1983); People v. George, 114 Mich.App. 204, 318 N.W.2d 666 (1982), lv. den. 414 Mich. 931 (1982). Among the factors to be considered in determining whether a due process violation has occurred are the reinstitution of charges without additional, noncumulative evidence not introduced at the first preliminary examination, the reinstitution of charges to harass, and judge-shopping to obtain a favorable ruling. People v. George, supra; People v. Turmon, supra; People v. Walls, 117 Mich.App. 691, 324 N.W.2d 136 (1982).

We do not find that the reinstitution of the charge against defendant was violative of due process. At the second preliminary examination new evidence was presented to the same judge who presided over defendant's initial preliminary examination. While the new evidence could have been introduced at the first preliminary examination, the failure to do so was more a product of neglect than a deliberate attempt to harass defendant. People v. Laslo, 78 Mich.App. 257, 260, 259 N.W.2d 448 (1977). The trial court, therefore, did not abuse its discretion in binding defendant over for trial.

Defendant also asserts that the lapse of time between the date of his alleged offense and the [139 MICHAPP 579] initiation of prosecution denied him due process. Defendant was charged with fraudulently receiving welfare benefits for the period of August to October, 1980. Defendant was initially charged on July 6, 1981. In People v. Bisard, 114 Mich.App. 784, 791, 319 N.W.2d 670 (1982), this Court stated the test to be used in determining whether a delay in instituting prosecution denies a defendant due process.

"[W]e hold that, once a defendant has shown some prejudice, the prosecution bears the burden of persuading the court that the reason for the delay is sufficient to justify whatever prejudice resulted. This approach places the burden of coming forward with evidence of prejudice on the defendant, who is most likely to have facts regarding prejudice at his disposal. The burden of persuasion rests with the state, which is most likely to have access to facts concerning the reasons for delay and which bears the responsibility for determining when an investigation should end."

The prejudice which defendant claims resulted from the delay was the...