People v. Dean , 198 Mich. App. 267 ( 1993 )

198 Mich. App. 267 (1993) 497 N.W.2d 223

PEOPLE
v.
DEAN

Docket No. 143050.

Michigan Court of Appeals.

Submitted December 8, 1992, at Detroit. Decided February 16, 1993, at 9:45 A.M.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Jon R. Sahli, Prosecuting Attorney, and John A. Hallacy, Chief Assistant Prosecuting Attorney, for the people.

James B. Fleming, for the defendant on appeal.

Before: SHEPHERD, P.J., and BRENNAN and L.P. BORRELLO,^[*] JJ.

BRENNAN, J.

Defendant pleaded guilty of assault with intent to do great bodily harm less than murder, MCL 750.84; MSA 28.279, and was sentenced to a prison term of two to ten years. He appeals as of right, and we affirm.

Defendant was originally charged with assault with intent to murder, MCL 750.83; MSA 28.278. Following a preliminary examination, defendant, who was sixteen years old at the time he committed the offense, was bound over to circuit court pursuant to the automatic waiver provision. MCL 600.606; MSA 27A.606. The automatic waiver provision is an exception to the general rule of MCL 712A.2; MSA 27.3178(598.2) that the juvenile division of the probate court has exclusive jurisdiction in proceedings concerning a child under seventeen years of age. People v Deans, 192 Mich. App. 327, 329; 480 NW2d 334 (1991). Pursuant to MCL 764.1f; MSA 28.860(6), a prosecutor may proceed in either juvenile or circuit court when a juvenile aged fifteen or sixteen is charged with any of the felonies enumerated in § 606, one of which is assault with intent to murder. People v Brooks, 184 Mich. App. 793, 796; 459 NW2d 313 (1990). After one of the codefendants in this case was convicted by a jury of the lesser offense of assault with intent to do great bodily harm less than murder, defendant and another codefendant were allowed to plead guilty of the lesser offense. Defendant subsequently moved to transfer the case to juvenile court for sentencing on the ground that the offense of which he pleaded guilty was not one of the enumerated felonies in the automatic waiver provision and, therefore, the circuit court did not have jurisdiction to sentence him. The circuit court disagreed, and this appeal followed.

On appeal, defendant contends that the court did not have jurisdiction to sentence him because the offense of which he pleaded guilty was not one of the enumerated felonies in the automatic waiver provision. We disagree. In People v Deans, supra, a panel of this Court held that once a circuit court acquires jurisdiction under the automatic waiver provision to try a juvenile, it does not lose jurisdiction to sentence the defendant when he is found guilty by a jury of a lesser included offense not enumerated in the automatic waiver provision. Id., p 332. Defendant argues that a plea of guilty of a nonenumerated offense should be treated differently than a jury conviction of a nonenumerated offense. Defendant contends that a ruling that the circuit court has jurisdiction to sentence a defendant charged with an enumerated offense who pleads guilty of a nonenumerated offense would encourage overcharging by the prosecutor. We disagree. The prosecutor must present sufficient evidence of the enumerated offense at the preliminary examination to justify binding over the defendant to circuit court. Otherwise, the case must be transferred to the juvenile division of the probate court. MCL 766.14(2); MSA 28.932(2). Moreover, we find that application of this rule to the facts of this case is consistent with the holding in Deans and the automatic waiver provisions, specifically, MCL 766.14(2); MSA 28.932(2), and that the circuit court's jurisdiction is not dependent upon whether a conviction of the charged enumerated offense is or can ultimately be obtained. Rather, it is dependent upon whether evidence sufficient to bind over the defendant was presented at the preliminary examination. Accordingly, we find that once a circuit court acquires jurisdiction under the automatic waiver provision to try a juvenile, it does not lose jurisdiction to sentence the defendant when he pleads guilty of a lesser included offense not enumerated in the automatic waiver provision. We note that the circuit court is nevertheless required to conduct a hearing at sentencing to determine whether the juvenile defendant should be sentenced as an adult or placed in a juvenile program pursuant to MCL 769.1(3); MSA 28.1072(3). Deans, supra, p 332. This was done in the instant case. Accordingly, we find that reversal is not warranted.

Affirmed.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.