People v. WhitePeople v. White
Lead Opinion
Dеfendant appeals as of right from a jury conviction of armed robbery
At the time of his arrest, defendant was a juvenile charged with five other felony offenses.
Dеfendant makes three claims of error, all of which are without merit. It is first argued that the statute under which the probate court waived jurisdiction over defendant was unconstitutional in that it failed to рrovide clear and adequate standards for such waiver. We disagree.
"In any case where a child over the age of 15 years is accused of any act the nature of which constitutes a felony, the judge of probate of the county wherein the offense is alleged to have been committed may, after investigation and examination, including notice to the proseсuting attorney, and parents or guardians if addresses are known, and upon the court’s own motion or motion of the prosecuting attorney, waive jurisdiction; whereupon it shall be lawful to try such child in thе court having general criminal jurisdiction of such offense.”
In People v Fields,
Defendant next contends that waiver of jurisdiction was improper in that the court had no basis for determining whether the interests оf defendant
"(B) Phase 2: Criteria for Waiver: Upоn a showing of probable cause, the court shall proceed to conduct a full investigation to determine whether or not the interests of the child and the public would best be served by granting а waiver of jurisdiction to the criminal court.
"In making such determination, the following criteria shall be considered:
"(1) The prior record and character of the child, his physical and mental maturity, аnd his pattern of living;
"(2) The seriousness of the offense;
"(3) Even though less serious, if the offense is part of a repetitive pattern of offenses which would lead to a determination that the child may be beyond rehabilitation under the rеgular statutory juvenile procedure;
"(4) The relative suitability of programs and facilities available to the juvenile and criminal courts for the child;
"(5) Where it is found to be in the best interests of the public welfare and for the protection of the public security, generally, that said juvenile be required to stand trial as an adult offender.”
A review of the Criteria for Waiver convinces us that the probate judge had sufficient evidence from which he could conclude that the best interests of the child and the public would best be served by granting a waiver of jurisdiction to the criminal
The final issue contests the use of prior juvenile conviction at sentencing. Thе Supreme Court has ruled in People v McFarlin,
Affirmed.
Notes
Former Supreme Court Justice, sitting on the Court of Appeals by assignment pursuant to Const 1963, аrt 6, § 23 as amended in 1968.
Breaking and entering an occupied dwelling,
Assault with intent to rob and steal while armed,
Assault with intent to do great bodily harm less than murder,
Assault with intent to rape,
Armed robbery,
Defendant was convicted of armed robbery which imposes a maximum sentence of life imprisonment. By adopting plaintiffs position thаt
Concurrence Opinion
(concurring). My views with regard to the constitutionality of
Act 22 of the Public Acts of 1946 (1st Ex Sess) changed the language of § 4 to read as set forth by
"[T]o amend sections 3 and 4 of chapter 12a of Act No. 288 of the Public Acts of 1939 * * * to revise and consolidate the statutes relating to the organization and jurisdiction of the probate courts of this state; * * * and the jurisdiction of the juvenile division of the probate courts over children * * * .”
Section 4 of Act 54 of the Public Acts of 1944 (1st Ex Sess) reads as follows:
"In any case where a child over the age of 15 years is accused of any act the nature of which constitutes a felony whiсh involves a maximum penalty of imprisonment for a term of more than 5 years, the judge of probate of the county wherein the offense is alleged to have been committed shall, upon motion of the prosecuting attorney, waive jurisdiction, and in case of all other felonies, said judge may, after investigation and examination, including notice to parents if address is known, and upon motion of the prosecuting attorney, waive jurisdiction; whereupon it shall be lawful to try such child in the court having general criminal jurisdiction of such offense.” (Emphasis added.)
In People v Smith,
"We must hold the amendment, attempted by Act No 37, Pub Acts 1927, unconstitutional, and, therefore, no amendment. This holding leaves the law as it was before the aborted attempt to amеnd.”
See also In re Petition of Hendricks, 248 Mich
Based upon the above authorities, it must be concluded that
The mandatory language of the first portion of § 4 which requires a probаte judge to waive jurisdiction in cases involving a felony carrying a maximum penalty of imprisonment for a term of more than five years sets forth a clearly ascertainable standard. By contrast, the remaining language with regard to all other felonies leaves in the hands of a probate judge the same broad unascertainable discretion held subject to constitutional infirmities in People v Fields, supra. However, the last half of §4 can be severed, leaving the first half of said section remaining as applicable law. See Eastwood Park Amusement Co v Mayor of East Detroit,
Finally, while the language of § 4 does not specifically mandate a motion by the prosecuting attorney, in view of the fact that the language of the first half of § 4 is mandatory as to the duty of
Act 140 of the Public Acts of 1969, an amendatory act in effect at the time juvenile court jurisdiction over defendant White was waived in 1971, incorporated certain insubstantial Changes into the statutory language but in no way cured the constitutional defect recognized in Fields.