Opinion
Docket No. 58317.
Decided June 9, 1982.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Conrad J. Sindt, Prosecuting Attorney, and John H. MacFarlane, Chief Assistant Prosecuting Attorney, for the people.
Ronald J. Bretz, Assistant State Appellate Defender, for defendant on appeal.
Before: M.J. KELLY, P.J., and T.M. BURNS and MacKENZIE, JJ.
Defendant, Stanford Robinson, was charged with breaking and entering an occupied dwelling with the intent to commit larceny, MCL 750.110; MSA 28.305. During his circuit court arraignment, defendant pled guilty pursuant to an agreement by which the prosecutor agreed to dismiss a supplemental information. However, at the time of defendant's plea, the prosecutor had not filed a supplemental information. Defendant was sentenced to between 5 and 15 years imprisonment.
On appeal, defendant argues that his plea bargain was illusory because it was induced by the prosecution's promise not to file a supplemental information which the prosecutor was legally estopped from filing. According to defendant, the prosecutor was required to file the supplemental information at the same time the information on the breaking and entering charge was filed.
In People v Fountain, 407 Mich. 96, 98-99; 282 N.W.2d 168 (1979), the Supreme Court stated:
"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 N.W.2d 912 (1970); People v Stratton, 13 Mich. App. 350; 164 N.W.2d 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. 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 N.W.2d 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."
There was a split of opinion in this Court concerning when the prosecutor was required to file a supplemental information. Some panels of this Court have found that Fountain requires the prosecutor to file the supplemental information with the information which charged the last felony. People v Stein, 99 Mich. App. 781, 787; 298 N.W.2d 638 (1980); People v Reese, 97 Mich. App. 785, 789; 296 N.W.2d 172 (1980). Other panels of this Court have held that the prosecutor complies with Fountain if he proceeds promptly against a defendant as an habitual offender when he becomes aware of a prior felony record. People v Leitner, 105 Mich. App. 681, 684; 307 N.W.2d 405 (1981); People v Haywood, 97 Mich. App. 621, 624; 296 N.W.2d 127 (1980). Finally, some panels of this Court have held that the supplemental information must be filed prior to the initiation of any plea negotiations. People v Martin, 100 Mich. App. 447, 459; 298 N.W.2d 900 (1980); People v Griffis, 107 Mich. App. 764, 766; 309 N.W.2d 583 (1981).
The Supreme Court has recently clarified its holding in Fountain. In People v Shelton, 412 Mich. 565, 568; 315 N.W.2d 537 (1982), the Supreme Court held that the prosecutor must proceed promptly to file a supplemental information and rejected the proposition that the supplemental information had to be filed simultaneously with the information on the underlying felony. The Court defined promptly to mean that the prosecutor must file the supplemental information not more than 14 days after the defendant is arraigned in circuit court on the information charging the underlying felony or before trial, if the defendant is tried within that 14-day period. Id., 569. The Court's decision in Shelton was to apply to cases in which the defendant was arraigned in circuit court after the date of the opinion's release, February 1, 1982.
While Shelton is not applicable to this case, its reasoning clarifies the holding in Fountain. The Fountain Court did not intend to announce a requirement that the prosecutor file a supplemental information at the same time the information on the underlying felony was filed. Rather, the Court required that the prosecutor proceed promptly against the defendant as an habitual offender. It is equally clear that Fountain did not require the prosecutor to file the information prior to beginning the plea-bargaining procedure. In this case, defendant's plea was entered on the same date as his arraignment in circuit court. If defendant had chosen not to plead, the prosecutor would have fulfilled the requirements of Fountain if he had promptly filed the supplemental information. The defendant's plea was exchanged for a promise by the prosecutor that he would dismiss the supplemental information. Since the prosecutor could have filed a supplemental information after the arraignment, the defendant's plea was not illusory.
Defendant's conviction is affirmed.