Opinion
Docket No. 135039.
Decided May 6, 1991, at 9:00 A.M.
In lieu of granting leave to appeal, the judgment of the Bay Circuit Court is reinstated, 439 Mich. 857.
Frank J. Kelley, Attorney General, Gay Secor Hardy, Solicitor General, George B. Mullison, Prosecuting Attorney, and Martha G. Mettee, Assistant Prosecuting Attorney, for the people.
Michael L. Hampton, in propria persona.
Before: MICHAEL J. KELLY, P.J., and WAHLS and SAWYER, JJ.
ON REMAND
On January 3, 1986, following a jury trial in the Bay Circuit Court, defendant was convicted of third-degree criminal sexual conduct, MCL 750.520d; MSA 28.788(4). Subsequently, defendant pleaded guilty to a charge of being an habitual offender, third offense, MCL 769.11; MSA 28.1083, and was sentenced to a term of eleven to thirty years in prison. Defendant appealed his criminal sexual conduct conviction, and we affirmed in an unpublished opinion per curiam. People v Hampton, decided March 10, 1987 (Docket No. 90767). Following our Supreme Court's decision in People v Stoudemire, 429 Mich. 262; 414 N.W.2d 693 (1987), defendant filed a motion in the trial court for resentencing as a second-time habitual offender, MCL 769.10; MSA 28.1082. The Bay Circuit Court denied defendant's motion for resentencing, and defendant appealed that decision to this Court. On July 2, 1990, we reversed the circuit court's decision denying defendant's motion for resentencing and determined that, pursuant to Stoudemire, defendant had been convicted of only one prior felony conviction and therefore should have been charged and sentenced as a second-time habitual offender. People v Hampton, 184 Mich. App. 434; 459 N.W.2d 309 (1990).
On October 30, 1990, our Supreme Court vacated our decision and remanded this case "for reconsideration in light of People v Preuss, 436 Mich. 714; 461 N.W.2d 703 (1990), in order to determine whether, for purposes of the habitual offender statute, the defendant's two prior felony convictions may only be considered as one criminal transaction, incident, or episode since the two offenses for which he was charged took place within moments of one another." 436 Mich. 883 (1990). We answer that question affirmatively, and, once again, reverse the circuit court's decision denying defendant's motion for resentencing.
The facts surrounding defendant's prior convictions are not in dispute. Defendant was charged in separate informations with breaking and entering two adjacent commercial buildings within a one-hour period on August 21, 1969, MCL 750.110; MSA 28.305.
In Preuss, our Supreme Court held that the fourth-time habitual offender statute does not require that a defendant's first, second, and third offenses be separated by intervening convictions or sentences. Id., p 737. In that case, the defendant, who was convicted of breaking and entering, was charged with being a fourth-time habitual offender arising from three prior breaking and entering convictions. Although defendant was convicted of and sentenced for two of the earlier breaking and entering charges in the same proceeding, the offenses were separated by several days and occurred at separate locations. Although the Supreme Court did not squarely address the scope of a criminal "transaction," "incident," or "episode" for purposes of the fourth-time habitual offender statute, it concluded that "even under Stoudemire's same-incident test [the] defendant was properly convicted as a fourth offender. . . ." Id., p 738. Further, the Court left open the question whether more closely related crimes would qualify as separate incidents or episodes. Finally, our Supreme Court expressly declined to disturb the precise holding in Stoudemire, and stated that, "we believe there is sufficient indicia of legislative intent to support the narrow holding in Stoudemire that a defendant's prior offenses must arise from separate incidents. Therefore, although we no longer rely on much of the reasoning in Stoudemire, we do not overrule its holding." Preuss, supra, p 737.
MCL 769.12; MSA 28.1084.
See, Preuss, supra, p 738, n 27, which states, "The question whether more closely related crimes would qualify as separate incidents or episodes must await later case development."
"We therefore hold, consistent with the legislative purpose underlying the habitual offender statute, that multiple convictions arising out of a single incident may count as only a single prior conviction for purposes of the [habitual offender] statute." Stoudemire, supra, p 278.
Here, defendant's prior felony offenses occurred on the same date, within the same hour, and in adjacent buildings. Although the offenses were separate, they were related, occurred in spatial proximity, and were, essentially, part of a crime spree. In reliance on the precise holding in Stoudemire, supra, p 278, that "multiple convictions arising out of a single incident may count as only a single prior conviction for purposes of the [habitual offender] statute," we conclude that, for purposes of charging defendant under the habitual offender statute, defendant had only one prior felony conviction. Therefore, defendant could be charged only as a second-time habitual offender, and must be resentenced accordingly.
Reversed and remanded for proceedings consistent with this opinion. We do not retain jurisdiction.