People v. Fountain
People v. Fountain
Opinion of the Court
Is it permissible to enhance sentence under the habitual offenders act
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
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.
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.
See MCL 769.10 et seq.; MSA 28.1082 et seq.
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.
Concurring Opinion
(concurring). I concur in the results reached. Although the result in Jones may not be statutorily
See State v McCraw, 59 NM 348; 284 P2d 670 (1955). Compare, Colo Rev Stat, § 16-13-103(6).
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).
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).
Reference
- Full Case Name
- People v. Fountain; People v. Jones
- Cited By
- 107 cases
- Status
- Published