People v. Fountain

407 Mich. 96 (1979)

282 N.W.2d 168

PEOPLE v. FOUNTAIN PEOPLE v. JONES

Docket Nos. 60151, 61345.

Supreme Court of Michigan.

Decided August 28, 1979.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Michael R. Mueller, Director, Prosecutor's Repeat Offenders Bureau, and Raymond P. Walsh and Larry L. Roberts, Assistant Prosecuting Attorneys, for the people in Fountain.

Kraizman & Kraizman for defendant Fountain.

State Appellate Defender (by Kim Robert Fawcett) for defendant Jones.

PER CURIAM:

Is it permissible to enhance sentence under the habitual offenders act[1] if the prosecutor has reliable information pertaining to a person's prior felony record before trial but does not charge the person as an habitual offender until after conviction is entered on the current felony charge?

*98 Alvin Fountain was convicted of carrying a concealed weapon in Recorder's Court of Detroit on September 23, 1975, and sentenced on September 30, 1975 to three to five years in prison. After Fountain filed a claim of appeal the Wayne County prosecutor filed a supplemental information charging him as a fourth offender. On April 9, 1976 Fountain was convicted as a fourth offender and received an enhanced sentence of 15 to 30 years.

Hank Jones was convicted by a jury of unarmed robbery on April 18, 1974 in Muskegon Circuit Court. The prosecutor charged Jones as a third offender. After conviction, but before sentencing, Jones pled guilty to the third offender charge and was sentenced on May 29, 1974 to 10 to 15 years on the unarmed robbery conviction[2] and 10 to 30 years as an habitual offender, sentences to run concurrently.

Fountain's and Jones' prior felony convictions derived from the same jurisdictions as their convictions on the current offenses.

A prosecutor who knows a person has a prior felony record must promptly proceed, if at all, against the person as an habitual offender. People v Hatt, 384 Mich 302; 181 NW2d 912 (1970); People v Stratton, 13 Mich App 350; 164 NW2d 555 (1968). The prosecutor is not foreclosed from proceeding against a person as an habitual offender after conviction on the current offense provided he is unaware of a prior felony record until after the conviction. MCL 769.13; MSA 28.1085. *99 The only recognized exception to this rule is when the delay is due to the need to verify out-of-state felony convictions based on the "rap sheet". People v Hendrick, 398 Mich 410; 247 NW2d 840 (1976).

Here the prosecutors must be presumed to have known of the defendants' prior felony records because their respective offices prosecuted the prior felonies. The habitual offender charges should have been filed with the information which charged the last felony to provide fair notice to the accused and avoid an appearance of prosecutorial impropriety.

In lieu of granting leave to appeal, pursuant to GCR 1963, 853.2(4), we reverse the decisions of the Court of Appeals, vacate the habitual offender sentences, and order that Fountain's 3- to 5-year sentence for carrying a concealed weapon be reinstated, and Jones' 10- to 15-year sentence for unarmed robbery remain intact.

Reversed.

KAVANAGH, WILLIAMS, LEVIN, FITZGERALD, and BLAIR MOODY, JR., JJ., concurred.

COLEMAN, C.J. (concurring).

I concur in the results reached. Although the result in Jones may not be statutorily[1] or constitutionally required, especially in the absence of any allegation or showing of prejudice from the delay,[2] it is based on this Court's supervisory powers over the practices *100 and procedures used in the courts of this state.[3] In order to avoid even the appearance of impropriety, the prosecutor should file the habitual offender information with the information charging the principal offense when he or she has prior knowledge of defendant's previous conviction(s). Such information should be drawn up and presented so as to insure that it will not place the defendant's past criminal record before the jury prior to the jury's finding of guilt or innocence on the principal charge. See People v Burd, 1 Mich App 178; 134 NW2d 843 (1965).

RYAN, J., concurred with COLEMAN, C.J.

[1] See MCL 769.10 et seq.; MSA 28.1082 et seq.

[2] It was improper to sentence Jones on the unarmed robbery conviction and as an habitual offender. MCL 769.13; MSA 28.1085 provides that a defendant may only be sentenced to one term of imprisonment on the underlying felony and the supplemental information.

[1] See State v McCraw, 59 NM 348; 284 P2d 670 (1955). Compare, Colo Rev Stat, § 16-13-103(6).

[2] Oyler v Boles, 368 US 448; 82 S Ct 501; 7 L Ed 2d 446 (1962), Graham v West Virginia, 224 US 616; 32 S Ct 583; 56 L Ed 917 (1912), Wessling v Bennett, 410 F2d 205 (CA 8, 1969); cert den 396 US 945 (1969). See, also, People v Marshall, 41 Mich App 66; 199 NW2d 521 (1972); Dickey v Florida, 398 US 30; 90 S Ct 1564; 26 L Ed 2d 26 (1970).

[3] Const 1963, art 6, § 5; see People v Sinclair, 387 Mich 91, 122; 194 NW2d 878 (1972) (opinion by SWAINSON, J.), People v Hamilton, 359 Mich 410; 102 NW2d 738 (1960); see, also, McNabb v United States, 318 US 332; 63 S Ct 608; 87 L Ed 819 (1943).