People v. Allen , 80 Mich. App. 786 ( 1978 )

80 Mich. App. 786 (1978) 265 N.W.2d 47

PEOPLE
v.
ALLEN

Docket No. 31568.

Michigan Court of Appeals.

Decided January 23, 1978.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Robert L. Kaczmarek, Prosecuting Attorney, and Peter C. Jensen, Assistant Prosecuting Attorney, for the people.

Craig H. Dill, for defendant on appeal.

Before: DANHOF, C.J., and T.M. BURNS and M.J. KELLY, JJ.

DANHOF, C.J.

Defendant was convicted by a jury of armed robbery, MCLA 750.529; MSA 28.797, and first-degree criminal sexual conduct, MCLA 750.520b(1)(e); MSA 28.783(2)(1)(e), and sentenced to 12 to 20 years imprisonment. He appeals by right.

Defendant's attorney at first declined an instruction on the lesser offense of unarmed robbery when the possibility of such an instruction being given was discussed in chambers, but later, before the jury began its deliberations, defense counsel did request such an instruction. The trial judge denied the request on the ground that it was not timely. In this he erred; the request for instruction prior to the beginning of deliberations was sufficient to preserve this issue for review. People v Jones, 71 Mich. App. 270, 272-273; 246 NW2d 381 (1976).

Evidence that establishes the greater offense always supports the giving of instructions on necessarily included offenses, and unarmed robbery is a necessarily included lesser offense of armed robbery. People v Ora Jones, 395 Mich. 379; 236 NW2d 461 (1975), People v Chamblis, 395 Mich. 408; 236 NW2d 473 (1975). Since Ora Jones and Chamblis have been given retroactive application, People v Lovett, 396 Mich. 101; 238 NW2d 44 (1976), People v Jackson, 70 Mich. App. 478, 480-481; 245 NW2d 797 (1976), we must reverse defendant's armed robbery conviction. Retrial on that charge is not required, however; instead, we remand for entry of a judgment of conviction of the lesser included offense of unarmed robbery and for resentencing, People v Herbert Ross, 73 Mich. App. 588, 594; 252 NW2d 526 (1977), provided, however, that if the prosecuting attorney, in his discretion, determines that justice would be better served by retrial on the armed robbery charge, the trial court shall, upon notification by the prosecutor prior to resentencing, vacate the judgment of conviction of unarmed robbery and grant a new trial on the armed robbery charge. People v Archie Smith, 396 Mich. 825; 238 NW2d 536 (1976), People v Herbert Ross, supra, at 594.

The trial judge failed to specify whether the single sentence he imposed applied to both convictions, and because that single sentence must be vacated because of the error committed, defendant shall be resentenced on his conviction of first-degree criminal sexual conduct, as well. The judgment of sentence shall reflect the sentence imposed on each conviction.

Defendant's claim of prosecutorial misconduct, which he raises for the first time on appeal, does not warrant reversal; if defendant had objected timely a curative instruction could have alleviated any potential for prejudice flowing from the prosecutor's remarks. People v Humphreys, 24 Mich. App. 411, 414; 180 NW2d 328 (1970).

Affirmed in part, modified in part, and remanded for further proceedings consistent with this opinion.

T.M. BURNS, J., concurred.

M.J. KELLY, J. (dissenting).

Judge KELLY dissenting would affirm for the reasons stated in the majority opinion of People v Wilkinson, 76 Mich. App. 109; 256 NW2d 48 (1977).