*1 1980] v Rice
PEOPLE RICE 45599, 10, 1980, Docket Nos. 47326. Lansing. Submitted June at 23, 1980. appeal applied Decided October Leave to for. Gillis J. Rice was convicted of assault with intent to commit involving penetration criminal sexual conduct in the Hillsdale Court, Moes, Harvey Subsequent Circuit W. J. to his sentenc- ing, filed an information him with being felony a third offender. Defendant was convicted and Judge appeals Moes resentenced him. Defendant both convic- appeal. tions and the cases were consolidated for Held: determining 1. The factors to consider in whether a new rule 1) given application pur- of law should be retroactive are 2) pose rule, general rule, of the new reliance on the old 3) justice. Purposes the effect on the administration of go guilt
which do not to the ascertainment of or innocence are retroactively. expressed not reasons to a law The rule Fountain, (1979), was a go guilt new rule of law which does not to the ascertainment of applica- or innocence. The rule should not be tion. "Felony”, procedure, 2. as used in the code of criminal means offender, upon may an offense for which the punished by imprisonment year death or for more than one expressly designated felony. or an offense to be a The offense of unlawfully driving away felony purposes an automobile is a despite express of the habitual offender statutes its References for Points in Headnotes 2d, seq. 73 Am Jur Statutes [1] [2, et § 2d, Subsequent 39 Am Jur Habitual Criminals and Offenders [4] [5] [7] [6] 39 Am Jur 41 Am Jur 41 Am Jur 41 Am Jur 21 Am Jur 39 Am Jur §§ §20. 21. 2d, 2d, 2d, 2d, 2d, Habitual Criminals and Indictments and 2d, Indictments and Informations 160. Criminal Law 19. Indictments and Habitual Criminals and § Informations § Informations Subsequent Subsequent § §§ 27. 159-162. Offenders § Offenders 15. App 1 misdemeanor, potential penalty designation since the as a year. imprisonment for more than one includes upon mandatory a defendant’s particulars is 3. A bill of *2 request only statutory short form of indictment is when the used, statutory is not short form of indictment used. Where the a defen- whether or not it is within the trial court’s discretion charge particulars to inform him of the dant a bill of needs him, by Appeals against of a denial of review the Court of and particulars is to determine whether the a motion for a bill of no need for a bill of abused its discretion. There is trial court adequately particulars preliminary in- a examination where against him. a defendant of the forms Affirmed. Burns, P.J., People v dissented. He would hold that T. M. presented only applicable a clarification of the law Fountain apply previously a new rule of law. He would rather than pending any People v to all cases court as rule of decision, initiated after of of that as well as all cases the date date, sentence and reinstate and would vacate defendant’s principal charge. on the his sentence Retroactivity. — — of Law 1. Criminal Law Rules determining whether a new rule of law The factors to consider 1) application purpose should be are of 3) 2) rule, rule, general on the old the new reliance justice; purposes go do not effect on the administration of which guilt or innocence are not reasons to the ascertainment retroactively. a law — — — 2. Criminal Law Informations Habitual Criminals Rules Law. purposes requiring The of the rule that a informa- charging b'eing felony tion a with a habitual offender defendant simultaneously charging the last be filed with the information provide crime are to fair notice to the accused and avoid an appearance prosecutorial purposes impropriety; these do not go guilt to a determination of or innocence. — — — 3. Criminal Law Informations Habitual Criminals Rules Retroactivity. — of Law charging The rule that a a defendant being felony must be filed simultane- with habitual offender ously crime need not be with the information the last applied retroactively, application could ad- since retroactive Rice requiring justice by versely the administration of affect criminal convictions to be over- number of habitual substantial prejudice prosecutorial despite miscon- the absence of or turned go purposes the rule do not to a determi- since the duct and guilt or innocence.. nation of "Felony” — — Habitual Criminals. 4. Law Criminal procedure, "Felony”, means an in the code of criminal as used offender, conviction, may pun- upon for which the offense year by imprisonment by than one or more ished death or designated felony; expressly the offense of to be a offense an felony purposes unlawfully driving away is a an automobile express despite its offender statutes of the habitual misdemeanor, potential penalty designation as a since year. imprisonment for more than one includes — — Short Bill of Particulars 5. Indictment and Information Appeal. — — — Statutes Form of Indictment Motions mandatory upon request particulars is a defendant’s A bill of used; statutory only indictment is not it is where the form of a defendant court’s discretion whether or not within the trial charge against particulars to inform him of the a bill of needs *3 Appeals him, by of the denial of the review the Court of and particulars to determine for a bill of is defendant’s motion (MCL 767.44; MSA the trial court abused its discretion whether 28.984). — — Prelimi- Bill of Particulars 6. Indictment and Information nary Examination. preliminary particulars where a no need for a bill of There is adequately a defendant of the examination informs against him. Burns, T. M. P.J. Dissent — — — Criminals Rules 7. Criminal Law Informations Habitual Retroactivity. —Law supplemental charging a defendant The rule that a information simultaneously being with a habitual offender must be filed charging an him with the latest crime where with information knowledge supplemental that a information has merely the former was a clarification of would warranted law; requiring prompt filing, rule new rule of rule any pending date of in court on the should to all cases or initiated after that date. clarification Kelley, Attorney General, A. Robert J. Frank App 1 Derengoski, Solicitor and Ronald C. Zel- General, Smith, lar, C. Prosecuting Attorney (by Mary As- General, Prosecuting sistant Attorney Attorneys Service), people. for the Appellate Tieber, F. Martin Appellate Assistant State De- fender, appeal. for defendant on Beasley Burns, P.J.,
Before: T. M. and and R.G. Deneweth,* JJ. Defendant, Rice, J. Gillis James
Beasley, was convicted in a trial of assault with intent nonjury involving to commit criminal sexual conduct pene- tration, in 750.520g(l); violation of MCL MSA 28.788(7)(1). He was sentenced to not less than six eight months nor more than years years ten in prison. Subsequent prose- this cutor filed a information (third) defendant as an habitual offender. In a jury trial, defendant was then convicted as a third offender, 28.1083, in 769.11; violation of MCL MSA prior and his sentence was increased to not less than 13 years years prison. nor more than 20 appeals right. He now as of that,
Defendant contends under the rule stated Fountain,1 his conviction as an habit- ual offender must be vacated where the had defendant’s convictions but did not file a until after his original conviction on the charge.
In deciding merit, whether this contention has we must address the question of whether *4 should application. Fountain, the Michigan Supreme Court va- * judge, sitting Appeals by assignment. Circuit on the Court of (1979). 96;
1 407 Mich
cated the habitual offender
sentences
defen-
stating:
Jones,
dants Fountain and
prosecutor
person
"A
who
prior felony
knows a
has a
proceed,
all,
promptly
against
record must
person
if at
Hatt,
People
as an habitual offender.
v
384 Mich
13 Mich
302;
App
foreclosed from
912.(1970);
Stratton,
181 NW2d
350;
to this rule is when the verify felony out-of-state convic- Hendrick, 'rap tions based on the sheet’. Mich "Here, prosecutors presumed must be to have prior known of the defendants’ felony records because respective prosecuted their offices felonies. charges The habitual offender should have been filed charged with the information which the last provide fair notice to the appear- accused and avoid an prosecutorial ance of impropriety.”2 joined by Justice Justice con- Coleman, Ryan, curred in the results reached: "Although the result in may statutorily Jones not be required, or constitutionally especially in the absence of allegation any is based on practices state. In order priety, information with the showing or prejudice delay, from the it supervisory powers this Court’s over the procedures used in the courts of this appearance impro- to avoid even the should file the offender habitual princi- pal offense when he prior knowledge or she has conviction(s).” omitted.)3 (Footnotes previous defendant’s case, In the instant the information on the 2 Id., 98-99.
3 Id., 99-100. *5 App 1 101 Mich 6 Opinion op the Court August 4, felony 1978. At underlying filed on was August arraignment 1978, was defendant on his infor- that a the record informed on an habitual him as filed mation would February On obtained. if conviction was offender underlying of the convicted 1, 1979, was defendant conduct) charge (attempted in a sexual criminal charged February 2, 1979, he was trial. On bench felony as a third in a by jury of this convicted was Defendant offender. charge 28, 1979. June on ruling Supreme a clear has not Court
The to be in Fountain is the rule or not on whether People retroactively. applied Morris4 which is In v giving apparently Court, order, the a one-sentence effect, vacated the defen ordered that sentence and offender dant’s habitual original be reinstated. his sentence 5 People Devine, held that this Court In filing an habitual erred in had not convic the defendant’s information after offender of defen had tion where remanded The case was before trial. dant’s record resentencing, trial court however, because for had underlying felony imposed separate
improperly for the sentences offender the habitual
and for conviction. part Supreme Court reversed
The remanded this Court which Devine decision of part resentencing, affirmed the case decision habitual the defendant’s which vacated sentence, that defendant’s and ordered offender underlying intact.6 remain sentence on apply- appeared to be in Devine the Court While 4 (1979). Mich 885 407 213; NW2d 20 Devine, People v Rice Opinion op the Court prevent
ing resentencing Fountain to of defendant it on his habitual offender did not that, reverse this conviction and stated ing resolv- opinion case, it intimated no on the retro- this activity of Fountain. Brown,7 in v Ronald a three-sentence Supreme
order, the Court remanded the case to *6 (1) to decide the issues of whether the this Court timing prosecutor’s filing supplemen- information was violative of the rule an- tal (2), so, if in Fountain and whether Foun- nounced retroactive effect. tain should the Court set forth three Hampton,8 determining whether a factors to be considered applied retroactively prospec- law should be or tively: <<** * (2) (!) purpose general rule; of the new (3) rule;
reliance on the old administration of effect on justice”.
Purposes go to the which do not ascertainment guilt or innocence are not reasons to retroactively.9 purposes The stated for the rule law provide fair notice to the in Fountain are "to appearance prosecutorial accused and avoid an purposes go impropriety”.10 These do not to a guilt determination of or innocence. purposes
It should be noted that neither of the
present
for the rule in Fountain
were
present
First,
notice; he
case.
the defendant had
arraignment
supple-
was informed at his
that a
charging him as
mental information would be filed
Before
there had been some indica-
eventually
tions of the rule that
the Court
adopted.
See, In re Brazel12and
v Stratton.13
*7
Stratton,
In
Justice Levin stated:
10, 11,
we now read
12
they
sections
and
"[A]s
contemplate
separate
2
procedures
situations and
to be
prosecutor
followed when the
possible
desires to make
meting
the
out of an
penalty pursuant
increased
to the
habitual criminal
dure. The
proce-
sections of the code of criminal
procedure
set forth in section 13 is to be
appears
followed whenever
it
prosecutor
to the
‘after
conviction’ of the
charge
current
that
the felon has a
prior felony
However,
record.
appears
where it
to the
prosecutor before conviction of
charge
the current
that
person
felon,
the
prior
accused
person
is a
the accused
11Hampton, supra, 677.
293 Mich
632;
is to be informed conviction on the current as a offender charge; procedure set ((Emphasis forth in section 13 need not be followed.”14 original.) in Supreme "approved”
The Court stated that it People v Hatt.15 procedures these Marshall,16 the Court held: "Clearly, prosecutor sup- has discretion to file a plemental information under the habitual criminal act filing after supple- is not limited to such prior mental conviction a current charge, knowledge previous where he has of the convic- tion.” pointed
The Court out language Brazel and Stratton was dictum and not control- ling: "It specific should be noted that issue in both Stratton, Brazel, supra, and In supra, re was prosecutor bring whether supplemental could respective therein, information as current defendants offenders, subsequent prior to the conviction on the case, in those cases. In each it was held
that the tion could file his informa- prior to or concurrent pending with the then charge. specific question The prosecu- as to whether the tor could file his information after the conviction on pending charge, the then current where convictions, had cases, was not before the Court in either of those nor Thus, it was decided language the Court. while the in both Stratton may persuasive, and Brazel it is certainly controlling, specific question where the herein was not before the Court in those cases and was not decided by respective those Courts._
14id., 356.
302, 309;
*8
16
(1972).
App
72-73;
41 Mich
In approval. a It held that with shall delaying properly until his discretion exercised filing sentencing infor- after being an ha- with the defendant mation aware he first became criminal where bitual prior FBI he received an record when defendant’s filing delayed "rap check the and he sheet” accuracy convictions. of out-of-state of the record again held that a Laslo,21 Court
In of a defendant’s has who supple required prior to file is not convictions the most to trial on mental supra, charge. Devine, This Court decidred recent filing initial on the of the information after the filing present case, before in the but information. light cases, it cannot line of above clearly presents rule of no new said that [17] Id., 71. 19 [18] 4 12 Mich Mich App App 410; 633, 644; 483, 493; 247 NW2d 145 NW2d 163 NW2d 345 (1966). (1968). *9 People v Rice Opinion op the Court law. Prosecutors could have relied on these cases in waiting until after defendants were convicted of underlying felonies before filing supplemental in- formations defendants as habitual offend- of Fountain could ad- application ers. Retroactive versely affect the administration of justice re- by a quiring substantial number of habitual offender overturned, convictions to be despite the absence or prejudice prosecutorial misconduct. We de- give cline to application to vacate defendant’s habitual offender conviction.
Defendant next contends that he was improperly charged and convicted as a third felony offender convictions, where one of his unlaw- automobile, fully driving an away violation of 750.414; 28.646, MCL MSA was designated a mis- under the applicable penal provi- demeanor code sion. 750.414;
MCL MSA 28.646 states: authority "Use of motor vehicle without but without Any person intent to who takes or uses without steal — authority any motor vehicle without intent to steal the same, party or who shall be a to such unauthorized taking using, upon or guilty shall conviction thereof misdemeanor, punishable of a by imprisonment in the prison state for not 2 years by more than or a fine or 1,000 Provided, not more than dollars: That in case [of] may first offense the court in its discretion reduce the punishment imprisonment county jail in the for a term of not more than 3 months or a fine of more further, than 100 provisions dollars: Provided That any of this section person shall be construed to persons or employed by the owner of said motor vehicle else, who, any or by employment, one the nature of his shall have the authority of or the to drive said motor if vehicle said motor vehicle is driven or used without the owner’s or consent.” proce- in the code of criminal as used "Felony”, are provisions the habitual offender dure of which 1974: as follows since been defined part, has "As in this act: used offender, for which "(g) 'Felony’ means an offense by im- punished by death or may be
upon prisonment designated expressly year an offense than 1 or for more felony.”22 law to be 1973 conviction of At time of defendant’s automobile, the code an unlawfully driving away *10 definition of read as procedure "felony” of criminal follows: act, in this shall be 'felony’ term when used "The offender, on to mean an offense for which the
construed death, by imprison- may punished be or conviction prison.”23 ment state driving unlawfully conviction
Defendant’s "felony” would constitute away an automobile procedure of the code of criminal purposes for definitions. under either of the above Rosecrants,24 this Court addressed held here. The Court presented the same issue resisting may an officer that a felon convicted statute prosecuted under the habitual offender the of- despite creating the fact the statute as a resisting fense of an officer defines the offense misdemeanor, the maximum term potential since officer is two imprisonment resisting an The Court reasoned: years. expressed Legislature has two intents as to the
"The 1927 PA [1974] PA 63, § ch MCL 1(g); I; MCL 761.1;MSA 28.843. 761.1(g); MSA 28.843(g). v Rice Opinion op the Court designated grade offense; of defendant’s penal under the code defendant’s activity is misdemeanor, termed a while under the later enacted code of proce- criminal dure it falls under the classification of felony. The Legislature general has the power designate to both the grade punishment and the of criminal offenses. The habitual offender statute is example an Legisla- power ture’s intent to use ble augment this permissi- punishment for second subsequent felony of- fenders rather than separate to make a substantive being crime out of an habitual offender. "Although designating defendant’s offense as a eliminates under the procedure code of criminal most, if all, not as a has the and uphold the effect designation of the offense code, misdemeanor penal under the Legislature power crimes, inherent to define grades their punishment. must, allowable We if possible, at all legislative expressed determination as in the applicable statute.”25 Rosecrants controls here.
Defendant’s final contention is that the trial court committed reversible error by refusing grant a defense request for a bill of particulars. Defendant relies on the last sentence of MCL 767.44; 28.984, MSA which states: prosecuting attorney, if seasonably requested "[T]he *11 by respondent, shall furnish a bill particulars setting up specifically the nature of the offense charged.” This proviso sentence is a to a section setting forth statutory short forms for informations. pro- This viso does not where, here, as the informa- tion is not one of the statutory Instead, forms.26
25Id., 669-671.
26People Tenerowicz,
276;
(1934),
v
266
People
Mich
Affirmed. Deneweth, J.,
G. R. concurred. (dissenting). Burns, T. M. I I P.J. dissent. believe People v Supreme opinion that Court’s Fountain, 96; (1979), 407 Mich 282 168 NW2d requires us to vacate the defendant’s habitual offender conviction. Fountain, Supreme Court held that where a prosecutor wishes defendant as an offender, filing
habitual he must do so by habitual offender information with simultaneously the information the defendant with the latest crime where the has that a supplemental information would be war- law, ranted at that time. This is not a new rule of rather, it merely is a clarification of Michi- gan law.
On the date of the Michigan decision law required who knew that a person all, had a record to if at proceed promptly, See, against person as an habitual offender. Hatt, People v 302; 384 Mich Stratton, (1970), v 350; App (1968). Thus, pre-Fountain NW2d even under 27People Tenerowicz, Harbour, supra, People supra. v v Harbour, Jones, supra, People NW2d 863 *12 15 v Rice by Burns, T. M. P.J. Dissent
law, defendant’s habitual offender conviction could vacated this case where supplemental the information under he which was convicted was not prosecutor 7, 1979, filed the by until March despite the fact defendant’s conviction under the was principle 1, information had on February 1979.1
In determining a particular ruling whether on a point of law effect, should be the factors forth by in Supreme set Court Kamin, 482, 494; (1979), 777 NW2d are seen often as paramount. Those factors are: rule; purpose new general ámount of rule; reliance on the old and the effect of the new rule on the administration of justice. Perceiving Fountain to set law, a forth new rule in this majority case has limited application its to possible However, the fewest I see in Foun- cases. tain nothing it a making sharp departure from Rather, former law. case every that could be re- basis of versed on could also be reversed on the the "promptness” basis of rule prior law.
Nonetheless, Kamin, considering the factors of I would hold that the first dictates in favor of defen- is, dant. That nothing there is in this case that prohibited would have prosecutor from filing the supplemental promptly information whereas the threat of a possible supplemental information cannot be deemed have anything had other than a coercive effect on defendant._ 2, February On filed an information 20, 1979, February defendant as supplemental third offender. On an amended was filed which the deleted high reference to a original court misdemeanor that had been cited in the 7, 1979, Finally, information. on March second amended dant was information was in which filed defen again charged as time a third habitual offender. Defendant was under convicted this last information. 101 Mich Burns, M. P.J. T. Dissent Kamin be said factor of the second can Neither Although mitigate against it was defendant. *13 supplemen- prosecutors practice file to common on than those later at dates tal informations filed, principle indeed were informations which were filed informations sometimes subsequent principle informa- on
to conviction practice been to have be deemed tion, cannot this pr made justified As was law. e-Fountain under prosecutors Stratton, were al- in Hatt and clear required ways informations file meaning only of promptly. clarified Fountain "prompt- "prompt”; it did not create the word depart radically from it. nor ness” test majority believes, contrary Finally, to what application cases to this and similar of adversely the administration affect will require only justice. us to case, it would In this sentence habitual vacate defendant’s eight years, years his six and reinstate 13 to 20 years on for his conviction sentence months to ten charge. principle Moreover, fair administration regard- important justice than concerns is more of ing administering justice. must not We the ease phrase sight "adminis- in the of the fact that lose para- "justice” justice” is of the word tration importance "administra- and not the word mount tion”. pertaining
Therefore, the rule I believe filing supplemental as informations the time for Stratton, clarified and as forth in Hatt and set after initiated Fountain, to all cases should that were to all cases date of Fountain and the pending any the date of this on court of state defendant’s I would vacate the Fountain decision. his sen- reinstate offender sentence habitual charge. principal tence on the