Opinion
Docket No. 46193.
Decided September 16, 1980.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, James J. Gregart, Prosecuting Attorney, and Paul Burakoff, Assistant Prosecuting Attorney, for the people.
John Wilkinson, for defendant on appeal.
On April 30, 1979, defendant entered a plea of no contest to a charge of assaulting Corrections Officer John Haskell in violation of MCL 750.197(c); MSA 28.394(3), the charge arising from an incident which occurred on September 10, 1978. Defendant was sentenced to a term of 32 months to 4 years and appeals as of right.
Prior to the incident in question, defendant was an inmate at Kalamazoo Correction Center. On September 10, 1978, defendant was found to be in violation of a Correction Center rule and was summoned to the Correction Center office. After being told that he would be placed on some sort of restriction, defendant assaulted Corrections Officer Haskell and had to be subdued by Corrections Officers Haskell and Krietemeyer. The Kalamazoo police were then summoned to escort the defendant to jail. Upon being placed in the back seat of the police car, defendant kicked out the window of the rear door. Separate warrants were issued charging defendant with malicious destruction of police property in violation of MCL 750.377b; MSA 28.609(2), and assaulting Corrections Officer Haskell. No attempt was made to consolidate the two cases.
In February, 1979, defendant was convicted by a jury of malicious destruction of police property. On April 30, 1979, defendant entered a plea of no contest to the present charge of assault after a motion to quash on grounds of double jeopardy was denied. Defendant now appeals claiming double jeopardy.
As a threshold matter, it has been held that a plea of guilty does not waive a defendant's right to attack his conviction based upon the defense of double jeopardy. People v Grable, 95 Mich. App. 20, 23; 289 N.W.2d 871 (1980), People v Johnson, 396 Mich. 424, 444; 240 N.W.2d 729 (1976), cert den 429 U.S. 951; 97 S Ct 370; 50 L.Ed.2d 319 (1976). See also Blackledge v Perry, 417 U.S. 21; 94 S.Ct. 2098; 40 L.Ed.2d 628 (1974), Robinson v Neil, 409 U.S. 505; 93 S.Ct. 876; 35 L.Ed.2d 29 (1973). A plea of no contest no more waives the defense of double jeopardy than does a plea of guilty.
Defendant argues that his convictions for assaulting Corrections Officer Haskell and malicious destruction of police property violate double jeopardy as multiple punishments arising out of the same transaction. However, charging a defendant with, and convicting him of, separate and distinct offenses growing out of the same criminal episode does not in and of itself constitute a double jeopardy violation. People v Schram, 98 Mich. App. 292; 296 N.W.2d 840 (1980), People v Stewart (On Rehearing), 400 Mich. 540; 256 N.W.2d 31 (1977), People v Martin, 398 Mich. 303; 247 N.W.2d 303 (1976).
"[W]here [a] defendant is convicted and punished for two distinct criminal acts, factually and legally independent of one another, the double jeopardy clause does not require that one of the convictions be vacated, despite the fact that they arose out of the same transaction." People v Flores, 92 Mich. App. 130, 138-139; 284 N.W.2d 510 (1979).
See also People v Terry Alexander, 82 Mich. App. 621; 267 N.W.2d 466 (1978).
The Supreme Court has recently framed the issue in terms of whether the second charged offense is by definition, or factually, necessarily included within the greater offense. People v Jankowski, 408 Mich. 79; 289 N.W.2d 674 (1980).
In the present case, the defendant's two convictions, assaulting Corrections Officer Haskell and malicious destruction of police property, are neither factually nor legally dependent upon one another. The facts indicate that the defendant had assaulted Corrections Officer Haskell and had been subdued before the Kalamazoo police had been summoned to escort the defendant to jail. After the police arrived and placed the defendant in the police car, the defendant kicked out the window of the rear door. Each of defendant's convictions required proof of additional facts which the other did not. No double jeopardy violation occurred. People v Bryan, 92 Mich. App. 208; 284 N.W.2d 765 (1979). Blockburger v United States, 284 U.S. 299; 52 S.Ct. 180; 76 L Ed 306 (1932).
Affirmed.