*1 Joseph PEOPLE v JOSEPH 9, 1980, Lansing. Docket No. 48834. Submitted December at Decided 20, appeal applied October 1981. Leave to for. obtaining possession Mitchell M. with of a substance, Valium, attempting posses- controlled and to obtain substance, Darvon, passing pre- sion a controlled scriptions. preliminary to the Prior examination in mat- these ters, complaint arguing the defendant moved to the charging the erred with felonies rather than one particularly with or more misdemeanors more the judge facts the The court case. district entered an order quashing complaint. people appealed Ingham the The to the Hotchkiss, J., Ray Circuit Court. C. affirmed the district court people appeal. order. The Held: Inasmuch as the facts of this case indicate that the defendant attempted prescription drugs by obtained or to obtain of a use forged prescription, prosecuting attorney the should have charged the defendant under which statute more fits the facts of this The prohib- intended to carve out an statute iting obtaining of controlled substances fraud with respect by prescription. obtained did quashing complaint. not err in
Affirmed. Walsh, J., F. D. dissented. He believes that obtaining is concerned with controlled substances obtaining prescription drugs misdemeanor statute covers [1, [2] [3] [4] Construction of What constitutes lesser offenses 2] 41 73 Am Jur charged, under Rule a narcotic 173. 11 ALR Fed 41 Am Jur Am Am Jur Jur dealing 2d, 2d, 2d, drug by References 2d, Indictments and Informations Statutes Drugs, provision Indictments and Informations 226. fraud of 31[c] Narcotics, of Uniform Narcotic for Points of Federal Rules of Criminal deceit. ALR3d 1118. and Poisons §§ "necessarily procuring in Headnotes §§ the administration included” in offense Drug 27.12. 313. Act or similar Procedure. Since substances. are not also controlled controlled acquired were his prosecutor did not abuse that the he believes felony violation. charging with the discretion *2 He would reverse.
Opinion the Court Charges. Instituting Attorneys — Prosecuting 1. determining under Prosecuting attorneys have broad discretion prosecution will be applicable possible statutes a which of two instituted. Charges. Attorneys Instituting — Prosecuting attorney a defen- prosecuting error for a It constitutes felony facts of the crime where the of a dant with violation lesser offense or other constitute a misdemeanor would also applicable (1) defining an and statutes where felony prohibit different distinct and lesser misdemeanor or specifi- offense are facts of the criminal conduct and where the prohibited by cally a misdemeanor or (2) an intent has evidenced where the prosecuted or lesser under the misdemeanor conduct be may despite the technical also fit within the fact that statute greater offense. definition — Judicial Construction. 3. Statutes specific statutory that a statute construction is A basic rule of subsequent contemporaneously language to or and enacted subject covering an matter constitutes same a conflict if there between them. by Walsh, D. F. Prescription Drugs. —
4. Controlled Substances prescription and the are controlled Not all forged obtaining by means of a of controlled substances prescription the Public altered constitutes Code; that are not Health decep- misrepresentation controlled substances means of Health Code under the Public tion constitutes a misdemeanor (MCL 14.15[17766]). 333.7407, 333.17766; 14.15[7407], MSA Attorney Kelley, General, A. Robert Frank J. Derengoski, Houk, General, D. Peter Solicitor Opinion op the Court Sibert, and Charles M. Prosecuting Attorney, Chief Appellate Attorney, for the people.
Farhat, P.C., Burns & Story, for defendant on appeal. Burns, P.J.,
Before: T. M. and Allen D. F. JJ. T. M. P.J. Burns, Defendant was in a two-count complaint with the crime of obtaining substance, possession Valium, of a controlled passing a forged prescription and the crime of attempting to obtain possession of a controlled substance, Darvon, passing prescrip- 14.15(7407)(l)(c). 333.7407(l)(c); tion. MCL examination, Prior to the preliminary moved to complaint arguing *3 in charging erred him with felonies rather than with one or more misdemeanors that more the facts of this Specifi- defendant cally, contended the prosecutor should have 333.17766; MCL 14.15(17766), provides which in pertinent part: person guilty
"A is of a misdemeanor who: "(a) Obtains attempts drug or to obtain prescription a by giving a or pharmacist false fictitious a name to or seller, other prescriber, dispenser. authorized or "(c) makes, Falsely utters, publishes, alters, passes, forges a prescription. "(e) attempts obtain, obtains, Knowingly pos- to a drug by sesses a prescription means of a for than other legitimate therapeutic purpose or as a result of a false, fictitious, forged, prescription.” or altered App 465 op Opinion the Court hearing to a quash to came motion
Defendant’s the 24, taken on motion Testimony on July prescription took several that defendant indicated Lansing dentist of an East pads the office from 1979, 25, defendant June On permission. without papers on pad prescription one of the presented signature the dentist’s which he had cap- Valium Lansing and obtained drug store 1979, 26, June he at- next on day, sules. The for forged prescription tempted pass to another However, Lansing store. drug Darvon at an East drugs on this he before any was arrested second occasion. to motion
On defendant’s July motion, the In defendant’s granted. granting ruled: opinion is court is the "[T]he quashed, complaint have the and warrant entitled to specifically ad- for the reason that the concerning the activities of defen- dressed the issue complaint. alleged Specifically, in this is dant as made a knowingly person attempt a for possess drug by to obtain or means of a legitimate therapeutic purpose or as a for other than result of a tion. drugs false, fictitious, forged prescrip- or altered judicial court takes notice of the fact that obtained, pursuant obtained matter, pre- prescription, a false scription in this are common complaind drugs, and conduct Michigan E people specifically is covered Compiled Laws 333.17766. 333.7404(l)(c) "The provision more of the law presently under the act under charged statute, is controlling is is more not *4 particular as to this infraction.” order Following entry magistrate’s quash- ing complaint, people appealed circuit court which affirmed on November People v Opinion op the Court people 1979. The now to this appeal Court and we affirm. in
Prosecuting attorneys have broad discretion determining possible under which of two applica- a prosecution ble statutes will be instituted. How- ever, this discretion is not unlimited. LaRose, People v 298, 304;
In App (1978), this it NW2d Court held that was an prosecutor’s abuse of the discretion to charge a statute, pretenses defendant under the false MCL 28.415, 750.218; MSA rather than under the insuf- statute, 28.326, 750.131; ficient funds MCL MSA only pretense” where the defendant’s "false was presentation of an insufficient funds check. The Court noted:
"Although presentation of an insufficient funds check accompanied may, representation, if additional false justify pretenses conviction under the false statutes * * * preclude prosecu- we hold that the instant facts It clearly Legislature’s tion under that statute. intent, enacting in the insufficient funds pretenses an carve out to the false provide particular and to for a for the presentation type pretense of false in involved of an * * * insufficent funds check. MCL The crime described in 750.131; substantially MSA 28.326 carries a lower maximum penalty 750.218; than that set forth MCL * * * MSA 28.415. The was bound to particular the statute which fit the facts and not under the more statute.” Ford,
More recently, Richard 414; (1980), NW2d this Court held was error to charge a defendant instrument, uttering publishing 750.249; 28.446, MCL where illegally used a credit card to obtain $21.30. act, Court found that the credit card protection *5 App 110 Opinion of the Court 28.354(16), MCL 750.157q; was intended the Legislature to cover all credit card crimes: whether, question
"The
then remains
under these
circumstances,
prose-
discretion should remain
cutor as
charge
to which statute he should
defendant
violating.
type
"We believe
this
of issue must be resolved
case,
case-by-case
on a
basis. In the within
we note that
the substance of the difference is that
uttering
publishing
statute under which defendant
pled guilty carries a maximum penalty
years,
of 14
while the
credit card statute which
to be more
fitting with relation to the facts of the within case
years.
that,
carries a maximum
of four
We note
case,
in this
defendant obtained the sum of
We
$21.30.
that,
particular
case,
hold
an
under the
facts of this
it was
prosecutorial
charge
abuse of
discretion to
defendant
14-year
with the
felony.”
The abuse of prosecutorial
discretion referred to
in Ford was addressed at
length in the case of
People
Carmichael,
v
86 Mich App
421-423;
(1978).
From these it is evident there are at least two circumstances which this Court will find an prosecutorial abuse of discretion in the charging of a defendant with a felony where the facts of the crime would also constitute a misde- meanor or other First, lesser offense. it is error for Opinion of the Court prosecutor with a defining and an
where the statutes prohibit applicable or lesser conduct and where the facts distinct and different prohibited specifically are of the criminal offense Second, statute. a misdemeanor or lesser for the it is also an abuse of discretion *6 a defendant with a where the to also violates a misdemeanor or criminal conduct lesser statute and where prose- has evidenced an intent that the conduct be cuted under the misdemeanor or lesser despite may it the fact that also within greater offense. the technical definition of charged in a Defendant this case was fel- ony Code, § 7407 Health under of the Public provides person for a to "know- is a possession ingly intentionally or obtain misrepresentation, of a controlled substance fraud, forgery, deception, subterfuge”. The cru- cial distinction between this statute and the misde- argues meanor statute under which defendant he charged, § 17766 of the Public should have been pertains specific Code, § Health is that to drugs known as "controlled substances” whereas drugs”. generally "prescription the latter refers prohibit Thus these two statutes do not identical It conduct. is further evident drugs simply category are one sub- controlled stances. statutory
A basic rule of
construction is that a
specific
language
contempo-
and enacted
subsequent
raneously statute cover-
ing
subject
excep-
the same
matter constitutes an
tion to the
statute if there
Highway Comm’r v
conflict between them. State
City Controller,
Detroit
331 Mich
49 NW2d
337;
App
D.F.
J.
Walsh,
McFadden,
(1951),
232;
(1977).
Inasmuch as the facts of this case indicate that obtained or to obtain pre- scription prescription, use should have misdemeanor statute which more fits the facts of this The Legislature intended to carve out an provide § for obtained in violation of Therefore, provisions § did not err quashing the com- plaint.
Affirmed.
Allen, J., concurred.
F.D. (dissenting). must I respectfully dissent. In my judgment the majority’s conclusion 7407 and Code, 17766 of the Public Health MCL 333.1101 et seq.; 14.15(1101) seq., et *7 cover the same subject is matter incorrect. The statute, is concerned with controlled § substances. The is concerned prescription drugs. all prescription
Not drugs are controlled sub- stances. Section 7407 makes it acquire a controlled substance any form of misrepresen- or deception. tation There nothing is in the Public Health Code which persuades me that the Legisla- ture intended that otherwise felonious conduct should punishable be only as a misdemeanor if the misrepresentation or deception was in form of a forged or altered prescription.
I must conclude that applies to prescrip- tion which are not also controlled sub- stances. Since the drugs which acquired ' D. F. in this case were con- trolled the I find no abuse discretion in prosecutor. made I would re- ' verse.