*1 1985] v DICKENS
PEOPLE 10, 1984, Lansing. at December Submitted No. 77912. Docket De- appeal applied for. July Leave to 1985. cided Bay pleas contendere in Circuit of nolo M. Dickens entered David homicide, operating negligent charges a vehicle Court to driving liquor, while his license was influence of under the years’ probation, the first to five He was sentenced revoked. county jail, sрent on the year to be in the which was sentences, 90-day and to two homicide sentence, concurrently one-year on the other two with the run appeals. convictions, Caprathe, Held: J. Defendant William rights were violated 1. Defendant’s driving pleas under accepting the nolo contendere court’s charge liquor and the the influence driving influ- charge. wаs under the that defendant The fact proving negligence on defen- essential element ence was an charge driving part, the influence thus the under dant’s homicide. included offense of a lesser driving on the and sentence Defendant’s conviction influence is set aside. preventing did not abuse its discretion 2. The trial court [1, [3] [5] [4] [6] Modern status of law See the annotatiоns in the ALR3d/4th See See the annotations in the ALR3d/4th Reckless Am Jur Am Jur Am Jur Am Jur one Parole, or Probation 2.§ Jeopardy. and Punishment. 118. cated Am Jur the annotations in the ALR3d/4th offense, by or similar 2d, 2d, 2d, 2d, 2d, Criminal Law 567-579. Criminal Law Criminal Law § Automobiles and References Criminal as lessor included offense of conviction of charge. regarding cure of Law 266-284. for Points 10 ALR4th 1252. §§ §§ 278. §§ 266-284, Highway higher in Headnotes 567-579. or lessor Quick Traffic §§ Quick Quiсk error, Index Index under driving Index under in instruction as to offense. 15 ALR4th under Sentence 296-311. while intoxi- Pardon, Former App 49 period years for a of five as one condi- from tion of his arguments it was 3. Defendant’s unlawful for the trial years’ probation to sentence him to serve five court must be reduced his sentence and that *2 probation rejected. applies are The limit on here. With exception of defendant’s conviction and sentence for the vacated, driving charge, under the influence which were defen- dant’s convictions and sentences are affirmed. part part.
Affirmed in and reversed J., Gardner, S. C. concurred with the results reached majority separately disagreement but wrote to state his as to reasoning Judge majority’s оn two of the issues. Gardner driving would under the influence is neither a lesser hold cognate of included nor offense homicide nor an homicide, element of but that defendant could not guilty been and sentenced on both have found counts since intent, during neither offense involves criminal both occurred episode, prevent and statutes were enacted to the same both public. Judge pointed similar harm to the also out Gardner that, power not while a court does have to revoke or charges a driver’s license for either of the of which convicted, may prohibit it defendant stands a defendant from may possession obtain of the defendant’s driver’s Thus, probation. as a condition of was not unlawful prevent for the court to defendant from aas condition op Jeopardy — — 1. Constitutional Law Double Lesser Included Offenses. prohibition against jeopardy The is not violated where requires proof each offense of a fact which the not, according statutory other does elements of each offense; jeopardy may a double claim be based on а necessarily charged proven lesser included offense as where (US Const, sufficiently V, XIV; the offenses are distinct Ams 15). 1963, Const art § Jeopardy — Cognate — 2. Constitutional Law Double Offenses Necessarily — Included Offenses. Michigan jeopardy test for double focuses on the facts of the particular proscribes multiple cognate case and convictions 15). (Const 1963, wеll as included offenses art § — Probation. 3. Criminal Law specified by impose probation may not conditions of
A court (MCL 771.3[4]; 28.1133[4]). statute Felony — — Sentencing — — Misde- Probation 4. Criminal Law meanor. sentence, carrying two-year maximum even if such A crime pur- statutorily designated as a misdemeanor for the crime is Code, felony statutorily pose as a for the the Penal treated Prоcedure; purpose term of the Code of Criminal subject imposed upon conviction of such crime is the five- year contained in the Code of Criminal limitation for felonies 28.1132). (MCL761.1[g],771.2; 28.843[g], Procedure Gardner, S. C.
Concurrence Jeopardy Multiple — — — Crimes Law Double 5. Constitutional Test. Same Transaction involving establishing whether crimes criminal The test for transaction for doublе intent arise out of same purposes the same criminal is whether the offenses are episode involve laws intended to and whether the offenses evil, substantially or similar harm or not a the same *3 of, different, very harm or evil. or a different kind Negli- — Driving — Liquor Influence of 6. Criminal Law Under gent — — Licenses. Homicide Probation Driver’s power a driver’s A court does not have the tо revoke liquor driving or for license for under the influence of so; homicide; empowered only secretary of state is to do however, empowered prohibit defendant from court is may require as a condition of and obtain operator’s possession of an license as a lawful condition of (MCL 257.319[1],257.625[4]; 9.2019[1],9.2325[4]; MSA OAG, 1970, p 1970]). No 124 [March Kelley, Attorney General, Frank J. Louis J. Gеorge Caruso, General, Mullison, Solicitor B. Prosecuting Attorney, Rasdale, and Thomas J. Prosecuting people. Attorney, Assistant for the Appellate (by State Defender N. Robert- Sheila son), appeal. for defendant on Opinion of the Court Beasley, P.J.,
Before: and R. B. Burns and S. C. Gardner,* JJ.
Beasley, Defendant, P.J. David Dick- Michael ens, pled nolo counts, contendere to three one of hоmicide, 750.324; 28.556, MCL MSA one operating a vehicle under the influence of li- 257.625; 9.2325, MCL quor, and one of driv- revoked, ing while 9.2604. These nolo contendere pleas were made pursuant agreement an which two other counts were dismissed. After being sentenced to five years’ probation, with one year to be spent jail, county the two 90-day sentences on the other chargеs,
two run concurrently with the one year sentence, defendant appeals right. as of
First, defendant claims that the double jeopardy provision of the constitution is violated by taking nolo pleas contendere to negligent homicide and to operating a motor vehicle while under the influ- ence of intoxicating liquor based on essentially that, same therefore, facts and the conviction for under the liquor influence of should be set aside. case,
In this defendant waived ex- preliminary amination. Consequently, facts only before the court were the trial information police reports furnished to the trial judge as a factual basis for the nolo contendere pleas. Both the United States and Michigan Constitu
tions contain prohibitions against double jeopardy.* The federal test was stated United States Supreme Court follows in Blockburger v United States:2 *4 * judge, sitting Recorder’s Court Appeals by assign- on the Court of
ment.
Const,
XIV;
US
Am V and Am
Const
art
15.
§
180;
284 US
52 S Ct
upon any rate of or in a private, speed at an immoderate or careless, manner, wilfully or but not reckless another, be death of shall wantonly, or shall cause the misdemeanor, punishable imprisonment guilty by aof years fine of prison in the not not more than or a state $2,000.00, both such fine and more than imprisonment.” per under the is not Driving influence alcohol se element homicide. statutory Blockburger Thus, two under a strict analysis, However, are distinct. Court Supreme offenses Harris v Oklahoma3 recognized in a double claim may be based charged included offense as proven, versus- ele- relying only statutory on the ments of an offense. While that involved case not, here, prosecutions successive nolo con- tendere pleas charges, both we believe that Harris analysis applies to the within case. in-
While does аlways 682; 433 US 97 S Ct 53 Ed 2d 1054 L *5 144 Mich 54 49 op elude of under the influence of alco- proof hol, and charged in this case DUIL was as proving negligence the element essential The negligent homicide. combined evidence of driv- pro- the and ing speed influence excessive finding the basis for the circuit vided court’s Therefore, we that negligence. conclude the offen- sufficiently charged ses not distinct and are proven attaching. double from jeopardy Michigan standard double has jeopardy People v Supreme been in stated the Court Carter4 as follows: " purposes jeopardy analysis, 'For of the double as a law, question matter of state constitutional the not is challenged definition whether necessarily the lesser is offense greater included also within offense whether, issue, charged, but on the facts of the case at Jankowski, People supra,
it
v
is.’
In cognate of a included found that conviction of- merged with conviction offense case, is that as apparent fense. In the instant a lesser the DUIL proven The homicide. stat- included offense an clearly utes in do not indicate inten- question by Legislature punish tion for offenses where, here, DUIL as proving negli- DUIL is an essential element Therefore, we aside convic- gence. set defendant’s tion and for DUIL charge. sentence Defendant right against did his double jeopardy waive plea.6 his nolo contendere that argument
Defendant’s
second
condi-
preventing
tion of
from driv-
5
79;
ing for five is unlawful years and that this term must be reduced to the two-year maxi- statutory mum for suspension provided license revocation or 9.2325(4) 257.625(4); by MCL MSA punishment as influence. 9.2019(1) 257.319(1); MCL also provides for a two-year maximum license suspension for the However, offense of homicide. a court may impose сonditions of probation not specified statute, 28.1133, as indicated by that statute’s residual clause: "(4) may impose The court other lawful conditions of probation as the may circumstances the case require warrant, judgment or may proper.” its be prosecution argues the trial court this case had the discretion to license for greater periоd of time than the two- year maximum permitted the secretary state by In Rio,7 statute. Detroit v Del this Court upheld the trial court’s condition that defendant would not be permitted to drive a vehicle during his six- *7 month term. probationary We held that the sus- pension was a valid exercise of discretion by the trial judge in prescribing "other lawful conditions” of probation. This Court rejected argument that the trial court’s power to impose such a condition was preempted by the provisions of the Michigan Vehicle Code providing for the revoca- tion or suspension of drivers through licenses sev- eral different procedures and following various specified events. We find that suspension defendant’s license during his five years’ probation was not аn abuse of discretion in the instant case.
Defendant’s third moot, issue is as the circuit court amended its order of probation by an order App 619-623; (1968).
7 10 Mich
Defendant’s five him to serve the court to sentence for lawful sentence, it because as of his probation years’ of the two excess punishment him to subjects for DUIL he received maximum sentences 90-day that, agree We a revoked license. driving on im- could not the trial court charge, one for the per- maximum than the a sentence pose acting driving on a revoked mitted for However, statute. general pled the fact that he ignores argument for, threе to, was sentenced nolo contendere vacated the DUIL we have charges. While right of defendant’s sentence as violation sen- his convictions and against jeopardy, That, stand. as charges other two tences for the the sen- below, for basis explained provides years’ tence five is that his argument final
Defendant’s maxi- two-year reduced to thе must be for a mis- as sentence mum authorized statute neg- defines 750.324; MSA 28.556 MCL demeanor.8 However, homicide as a misdemeanor. ligent v Reuther:9 this Court stated argument "There is no merit to defendant’s proba- authority impose period trial court lacked Although crime to years. of two tion which defendant excess pled guilty two-year is labeled a misde- misde- meanor, the detеrmination of whether is a felony purposes of the limitations meanor or a probation in MSA 28.1132 is length of MCL 28.843(g), People v governed by 761.1(g); MCL Stiles, App 297 NW2d Mich exceeds one the allowable maximum sentence Since 28.1132(1). 771.2(1); 349, 352-353; 309 NW2d *8 144 Mich by Gardner, J. S. C. Concurrence question felony in is a and the year, the crime probation applies.” limit on We, therefore, five-year probation аffirm the sentence portion defendant’s for homi- cide. the exception With for DUIL which charge, and sentence we have vacated, defendant’s convictions and are sentences affirmed. part. part
Affirmed and reversed Burns, J., R. B. concurred. Gardner, (concurring). I concur S. C. with Beasley Judge but sepa-
results reached write I do not with rately. reasoning conсur on two Beasley, Judge issues. As stated DUIL is not cognate included or offense of negligent homicide nor is DUIL an element of negligent so, homicide. Even could not have been guilty found and sentenced on counts. both Crampton 54- Michigan Supreme Court A District Judge, NW2d (1976), established a criterion for double jeopardy in prosecutions multiple charges growing from episode. same transaction or one or "Where more of the offenses does not involve intent, criminal the criterion is whether offenses are of the same episode, criminal whether involve offenses laws intended to same evil, different, similar harm or not a substantially or a omitted.) of, (Footnote very different kind harm or evil.” Applying this charges against criterion this defendant, DUIL, Crampton, supra, nor neither (MCL negligent homicide involve criminal intent. *9 Gardner, S. C. Concurrence 28.556, not or wilfully wantonly.) MSA during episode the same Both offenses occurred prevent were enacted to similar and both statutes public. harm in Crampton, DUIL the Court
In discussing supra, purpose of the DUIL law is to said against danger from traveling public protect not in control of thеmselves. From the drivers statute is reading of the for the same It purpose. it was enacted obvious bring to to would be double charges. him on both trial and sentence revoking suspending or As a clarification license, a driver’s court does not have suspend a driver’s license power revoke can charge; only Secretary either State portion of the statute cover- pertinent do that. The influence, 257.625(4); ing driving 9.2325(4), court states "the shall order * * *”. suspend state to For secretary of 257.319(1); in MCL penalty homicide the is found 9.2019(1), im- of state shall secretary "[t]he though a court is not suspend”. Even mediately license, empowered suspend to revoke or a driver’s empowered prohibit a defendant the court Detroit v from as a сondition of Rio, Del A NW2d possession court and obtain of an may require as a lawful operator’s proba- condition of and, so, doing infringe upon tion does not statutory authority department exclusive state to or revoke an operator’s license. 1970). (March OAG, 1970, It p No for the court defen- unlawful dant from as a condition of probation. I in both results remaining
On the issues concur reasoning.