*1
PEOPLE v DOYLE
August
Lаnsing.
Docket No. 148686. Submitted
at
Decided
18,
January
1994,
appeal sought.
9:35
at
A.M. Leave to
Doyle
charged
R.
Michael
in the Oakland
Court
Circuit
with
operating a motor vehicle while under the influence of intoxi-
cating liquor,
offense,
charged supplementally
third
and was
offender,
court,
an habitual
second offense. The
J.,
Gage,
charge,
Hilda R.
dismissed the habitual offender
although
that
Court in
v Bewers-
dоrf,
faced with an ex
anticipated
offense.
when he committed the ouil
not have
*2
Intoxicаting
Driving
—
the Influence of
Under
Automobiles
—
—
—
Liquor
Vehicle Code
Enhancement
Motor
Sentence
Habitual Offenders.
(1991),
Bewersdorf,
it was decided
Zawideh Green appeal. on defendant Reilly Marilyn P.J.,
Before: Kelly, D. C. JJ. Kolenda,* 26, 1991, defendant J. On June
D. C. Kolenda, having, charged on that with was arrested and operated under the date, motor vehicle while a intoxicating liquor, MCL third offense. influence 257.625(6); 9.2325(6). charged He also
MSA
was
second-felony
769.10;
offender. MCL
with
a
charge MSA 28.1082. The effect of that lattеr
possible penalty for the
to
maximum
increase the
imprisonment
years’
to
from 5
ouil,
imprisonment.
years’
7Vi
a motion
defendant filed
On October
contending
supplemental
quash
information,
pursuit
it
аn
of would constitute
that continued
*
assignment.
judge, sitting on the Court of
Circuit
Mich
Opinion of the Court
inappropriate
retroactive
of a sentence-
enhancing change
August 22, 1991,
in the law. On
Court had
announced
Bewersdorf,
55;
for an habitual offender agreed The court trial defendant dis- supplemental missed information. He then pleaded guilty given prison and was term of two years. prosecution appealed. to five procеss provisions We affirm because due *3 Michigan the United States Constitution and the Constitution bar the retroactive application ju- enhancing dicial decisions that have the effect of possible penalty the for a criminal conviction. While the Ex Post Facto Clauses those constitu- apply directly judiciary, they tions not do to the applicable through by analogy are thе Due Process Potts, Clauses. 295, 300; 436 Mich (1990). words, NW2d not do In other the courts can- Congress their decisions what legislatures Among the state cannot do statute. things, by judicial other a court cannot construc- рenalty tion increase the authorized for a crime Stevenson, after fact.
396-397; that Because is precisely application what of Bewersdorf to applied do, this case wоuld that case cannot be to this one. fully appreciate Supreme
We that the Court did apply retroactively. itself Bewersdorf That Court Opinion the Court applied in that to both defеndants its decision alleged driving though their drunken even obviously predated Nonetheless, we the decision. obligated, only free, this case to decide are not but nothing in the Bewersdorf do. There is аs we says opinions Court consid- that that issue this Court. the constitutional before ered Accordingly, that Court’s retroactive precedent for does not constitute its decision propositiоn not vio- that an does such process. nature of due Given incremental late recog- making, long judicial it has been precedent opinion an not for issues nized that is Burnham, raised considered. Moinet v neither nor Stoepel Co, 489, 491; 106 & NW having Accordingly, so, free to do that the federal this state’s both determined constitutions bar the
application of Bewersdorf to obligation obey case, our those constitutions this our decision. dictates prosecution’s argu- persuaded by
We are
process
not im-
due
considerations are
ment that
plicated
does not
in this
Bewersdorf
case because
prosecution
change
in the law. The
constitute
argues
merely
discarded
that
interpretation by
clearly
this Court of
erroneous
meaning
act,
act
thаt that
as
the habitual offender
implemented in
has been the law since
Bewersdorf
reject
this case.
we
the initiation of
Because
before
argu-
prosecution’s
premise,
rejeсt
we
explicitly
"[a]
Because
new decision
ment.
holding obviously 'breaks new
an earlier
overrules
”
*4
'imposes
obligation,’
ground’
Butler
a new
v
or
McKellar,
407, 412;
1212;
110
108 L
S Ct
US
(1990),
Penry
quoting
Lynaugh, 492
2d
Ed
2934;
2d
302, 314;
106 L Ed
109 S Ct
US
say
did
it is
that Bewersdorf
unrealistiс
prosecu-
change
reject
also
We
law.
App
203 Mich
by Reilly,
Dissent
argument
acceptance
tion’s
because its
un-
would
by
dermine the rule of law in this state. A decision
any panel
cоntrolling precedent
of this Court is
changed.
statewide until
Richardson v General
Corp,
App
Motors
139 Mich
727;
increase after the fact defendant’s offense.
Affirmed.
Marilyn Kelly, P.J., concurred. (dissenting). respectfully Reilly, I dissent. In 174; 441 panel anothеr of this Court held that a operating conviction of a vehicle while under the intoxicating liquor, influence of not serve as the
underlying felony for sentence pursuant enhancement to the hаbitual offender statute, 769.10; MCL MSA 28.1082, because that provision specific was in conflict with the more sentence enhancement of the Vehicle 257.625(5) 9.2325(5) (6); Code, MCL MSA That decision was followed this Court Bewersdorf, 181 430; Although NW2d 271 leave to appeal was denied the Tucker leave to appeal granted Bewersdorf decision was July Court in 1990. The Court of rejecting Bewersdorf, *5 299 v by Reilly, Dissent stat- enhancement sentence habitual offender August Supreme by on Court ute, was reversed People Bewersdorf, 55; 475 1991. (1991). Supreme Court determined 231 and that conflict were that the terms en- sentence offender
of the habitual unambiguous. clear and statute were hancement charged on arrested and was When defendant interpreta- 26, 1991, the Tucker/Bewersdorf June was con- the statutes between оf the conflict tion trolling precedent Before No- trial court. for the ruling precedential was con- 1, 1990, that vember trolling only contrary was reached a result until Supreme panel by or the of this Court Corp, 139 Motors v General Richardson Court. Mich (1984). 22 After Novem- 727; 363 NW2d any published issued however, ber by controlling panel until became of this Court by or a or modified reversed special comprised panel of the Chief this Court Judge this Court. members of other and twelve 1990-6. Order No. Administrative arrested time the defendant At the expect his case reach that should he could panel Appеals, consider that would Court of his case dorf trary disagree might Tucker/Bewers- by any ruling, con- bound he would be and until it was reversed modified or Court or of this thirteen-member supra; Richardson, Administrative Court. was not entitled 1990-6. Defendant No. Order rely ruling by the Court a on foreseeably to be erroneous. could be determined 347, 353-354; 84 S Ct Columbia, 378 US Bouie Elliott, 114 State 1697; 12 L Ed 2d cert den 18-19; P2d 440 2dWash in this Therefore, the defendant US Bewersdorf, wаs not the defendant like by Reilly, Dissent post faced with an ex facto of a sen- anticipate tence he could not at the time of his arrest. granting
I would reverse the trial court’s order quash supplemental the motion to information *6 proceedings. and remand for further