People v. Davenport , 51 Mich. App. 484 ( 1974 )

51 Mich. App. 484 (1974) 215 N.W.2d 702

PEOPLE
v.
DAVENPORT.

Docket No. 14213.

Michigan Court of Appeals.

Decided March 1, 1974.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Raymond L. Scodeller, Prosecuting Attorney, and James R. Ramsey, Assistant Prosecuting Attorney, for the people.

H. James Starr, for defendant.

Before: BRONSON, P.J., and R.B. BURNS and DANHOF, JJ.

ON REMAND

R.B. BURNS, J.

When a Lansing police officer attempted to arrest defendant for the ordinance violation of being a disorderly person by uttering obscene words in public, Lansing ordinances, ch 22, § 22-13(7), defendant resisted. A district court jury acquitted defendant of the charge of being a disorderly person. Some months later a circuit court jury convicted defendant of the felony of resisting arrest, MCLA 750.479; MSA 28.747. Defendant timely appealed that conviction, and we affirmed over the dissent of Judge BRONSON. 46 Mich. App. 579; 208 NW2d 562 (1973). Now, the case has been remanded to us by the Supreme Court, 390 Mich. 809 (1973), for reconsideration in light of People v White, 390 Mich. 245; 212 NW2d 222 (1973). We reverse our original decision in this case, and order defendant discharged.

In People v White, 390 Mich at 257-258; 212 NW2d at 227, our Supreme Court adopted the "same transaction" test as the "only meaningful approach to the constitutional protection against being placed twice in jeopardy". The Court also observed that "[a] procedural rule allocating jurisdiction to try offenses between the several courts of the state must be subordinated to a defendant's constitutional right not to be put twice in jeopardy for the same offense". People v White, 390 Mich at 260, fn 10; 212 NW2d at 229, fn 10.

As in People v White, supra, the two crimes with which defendant was charged were committed, if committed at all, in a continuous time sequence and in pursuit of a single intent or goal. When a police officer stopped defendant for a traffic infraction, defendant allegedly refused to cooperate with him and directed obscene epithets at him, and then, when the officer attempted to arrest defendant because of those epithets, defendant refused to submit peacefully. The continuousness of the time sequence is obvious. The unity of intent is also readily apparent — a refusal to submit to a police officer's authority.

Unlike White, this case does involve a conflict between the Legislature's allocation of jurisdiction to the courts of this state and defendant's right against double jeopardy when interpreted in terms of the same transaction test. The charge of being a disorderly person, because of a municipal ordinance violation, could be tried only in a district court, MCLA 600.8311(b); MSA 27A.8311(b), while the charge of resisting arrest, because it is a felony, could be tried only in a circuit court, MCLA 600.601; MSA 27A.601. However, that allocation of jurisdiction cannot defeat defendant's right against double jeopardy. Admittedly, the Supreme Court's holding to that effect is dictum, and was expressly recognized as such by the Court. Nonetheless, because of the clarity and force with which the Court made the point, we cannot ignore that holding, and must conclude that the Court intended to overrule People v Townsend, 214 Mich. 267, 275; 183 N.W. 177, 180 (1921), as well as People v Grimmett, 388 Mich. 590; 202 NW2d 278 (1972).

The conflict between the protection against double jeopardy and the allocation of jurisdiction among the district and circuit courts can be resolved by authorizing one of those courts, probably the circuit court, to try all charges, misdemeanors and felonies, in cases such as the instant one. However, a grant of such authority may be made only by the Legislature or the Supreme Court. Const 1963, art 6, § 13. Until either or both of those bodies act, prosecutors must, when confronted with a case such as this one, elect which charge to pursue.

Reversed. The defendant is ordered discharged.

All concurred.