*1 1982]
PEOPLE v BONOITE 19, 1981, Fеbruary Docket No. 52348. Submitted Detroit. Decided January 1982. convicted, plea guilty, J. Carroll Bonoite was on his assault great bodily murder, with intent to commit harm less than Court, Simon, Jr., Ionia Circuit Charles W. J. The defendant originally plеd guilty. was with the offense to which he prosecuting Subsequently, attorney filed a charging being the defendant with an habitual plea offender. The defendant and entered a into bargain agreed plead guilty wherеin to the original charge prosecutor’s agreeing in return for the charge. appeals dismiss habitual offender The defendant alleging that his conviction it reversed because was product illusory рlea bargain. of an Held: charging being Since the information the defendant with habitual offender was filed before the defendant’s conviction "promptly”. it was filed convic- defendant’s illusory plea bargain. tion not the Affirmed. P.J., generally C. D. dissented. She concludes that a prosecuting attorney file the information being simultaneously defendant with an habitual offender with prosecution information. She believes that brought too late. re- She would verse the defendant’s conviction.
Opinion op the Court Plea-Bargaining Agreements— — 1. Criminal Law Habitual Offenders. plea bargain illusory guilty plea A where defendant’s [5] [2, 3, [4] [1] Power of cоurt to make for 41 Am 20 Am §§ respect Am 17.5, 18. Am39 Jur Jur Jur 2d, 2d, 2d, allegations Jur References Indictments and Criminal Law Courts 74. 2d, Habitual Criminals and § as to for Points in Headnotes permit §§ Informations § convictions. 17 ALR3d 1265. amendment 485. Subsequent 200. indictment with Offenders prоceedings forego promise habitual offender induced where no would be warranted. such Prosecuting Attorneys — Habitual Offenders. *2 attorney prosecuting has a A knows that a defendant who all, against prоmptly, proceed however, offender, prosecutor may a habitual as an proceed against as an habitual offender after a defendant prosecutor provided the is the current offense conviction on prior felony after the conviction on record until unaware of the attorney presumed charge; to prosecuting is a current prior felony record his office where known of a defendant’s prosecuted the felonies. Attorneys Prosecuting — 3. Habitual Offenders. file an offender that a habitual The all, only promptly, requires if at before the file the habitual offender information cutor must felony. conviction of the defendant’s — 4. Courts Dicta. deference; superior dicta court is entitled considerable of a necessary Supreme of render all that is any pоint is to show an decided authoritative question precise adjudged, regardless judicial mind to the question necessary to to decide the whether it was decide case. Attorneys Prosecuting —
5. Habitual Offendеrs. proceed mandating prosecuting attorney must rule how pursuant charging offender when a defendant procedural supplemental is in nature and the guilt or accused not at issue. innocencе D. C.
Dissent Attorneys Prosecuting — 6. Habitual Offenders. against prosecuting attorney A who is a defendant charging fíle the information an habitual offender should being simultaneously with defendant with an habitual offender Kelley, Attornеy General, A. J. Robert Frank Randy Derengoski, Smith, General, H. Solicitor Prosecuting Attorney, Nelson, C. As- and Thomas people. Attorney General, for the sistant Bonoite Opinion of the Court Supina, appeal. Gerald J. for defendant on Riley, P.J., Before: and Bashara JJ. Mackenzie, July 22, 1979, J. On
MacKenzie, defendant was great with assault with intent commit bodily murder, 750.84; harm less MCL MSA stating 28.279. An amended information the same charge filed was the case on March 1980. After various delays, April 17, set for trial on April appeared However, arraignment court for on a informa- offender, tion him as an habitual MCL although supplemen- 769.11; 28.1083, MSA no such appeаrs tal information in the lower court file. It undisputed prior felony convictions on which the habitual offender was based were *3 prosecutor’s by obtained the same office that appearanсe, During that instant case. cuted the pled guilty original charge defendant to the in prosecutor’s agreement return for the refrain from to dismiss or
filing
the
Defendant was sentenced to serve
to
6-1/2
10
prison
years
appeals
right.
by
and now
argues
Defendant
that his conviction must be
illusory plea bargain.
reversed
In
the
as
People
App
Johnson,
v
77, 79;
Roderick
86 Mich
person
People
384 Mich
offender.
habitual
Stratton,
302;
13 Mich
(1970); People v
"Here prior felony records because known of defendants’ prosecuted respective their felonies. offices charges hied offender been habitual the last with the information which appear- provide and avoid an fair notice to accused added.) impropriety.” (Emphasis prosecutorial ance of Ruff, Recently, Court ana- panel of this 310 NW2d Stratton, Hatt upon the cases relied lyzed and "promptness” concluded of Fountain meant more nоthing file conviction offender information before defendant’s above language emphasized felony. *4 concerning filing simultaneous was dismissed in view of the Fountain Court’s statement dicta it, 96, Mich 97: at 407 before issue permissible under "Is it enhance sentence has reliable offenders act Opinion of the Court person’s prior pertaining felony to a before charge trial but not does habitual offender until aftеr conviction is entered on (Footnote omitted.) charge?” felony current judicial superi- course,
Of
even the
our
dicta of
ors is entitled to considerable
In
deference. Detroit
Michigan
Comm,
Publiс Utilities
288 Mich
explained
cutor on an habitual at a substаn- tially stage earlier cases such as Hatt required. opinion and Stratton The Fountain con- nothing tains departure which indicates a reason for such a
from law. An judicial filing” mind to the "simultaneous lan- guage аpparent agree is thus not and we therefore panel language may with Ruff disregarded as dicta. supported
The result we here reach a close reading of the Court’s later Young, passed question
which the Court of Foun retroactivity. 366, tain’s At 410 quoted holding what it called its Fountain quoting filing” without the "simultaneous lan guage. holding Moreover, the Court’s on the retro- activity 363, 367-368, of Fountain as follows: practice
"The former of filing only after conviction current *5 App 172 167 112 Mich Opinion of of the Fountain was widespread. Retroactive administration policy effect on the would have adverse proce- justice. in Fountain is of dural proceed offender rule established nature, mandating prosecutor must how a in charging a defendant when pursuant to a
guilt the not at issue. Since or of the accused is innocence appearance of is to avoid аn purpose of rule pur- serve that prosecutorial pose impropriety, it would not past conduct. apply the rule to applicable to v People "We Fountain conclude August thе date of pending appeal cases decision in on Fountain, provided the was People v issue cases, appeal; and in during pendency raised the plea hearing of which con- guilty trial or People date of decision days cluded 20 after the Fountain.” in- filing” requirement
If a was "simultaneous Fountain, hold- by deed then Court’s imposed Young in- ing retroactivity on Fountain’s for expressed prosecu- its сoncern consistent with For exam- practice. torial reliance on the former here applies guilty-plea Fountain since ple, more than seven months was concluded hearing 28, August after the date here required if Fountain Yet file the habitual offender information with the last have to file the habitual offender cutor would had 1979, Fountain July before decided. recognize previous
We some decisions view of this Court taken different See, filing” for language. Fountain "simultaneous Mo People example, pre- Young decisions head, 612; 295 910 App NW2d 476; 300 Stankiewicz, (1981). In rev’d Dissent aspects Young view of decision noted longer above, we no believe that the treatment of filing” language the "simultaneous in those cases was correct.
Since the habitual offender information here was filed before defendant’s conviction of the last *6 "promptly” it was filed as that term was supra. Ruff, used in Fountain. See Defendant’s was, therefore, conviction illusory plea bargain. not the Affirmed. J., concurred.
Bashara, (dissenting). Defendant сontends prosecutor brought too late in view of (1979). agree I and would
reverse. Appeals split
The Court of
on the correct
interpretation
People Mallory,
of Fountain.
(1981), People
App 629;