People v. Smith , 100 Mich. App. 731 ( 1980 )

100 Mich. App. 731 (1980) 300 N.W.2d 388

PEOPLE
v.
SMITH

Docket No. 78-2760.

Michigan Court of Appeals.

Decided October 22, 1980.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, David H. Sawyer, Prosecuting Attorney, and Carol S. Irons, Chief Appellate Attorney, for the people.

Buth, Wood & Weidaw, for defendant on appeal.

Before: D.E. HOLBROOK, JR., P.J., and T.M. BURNS and E.E. BORRADAILE,^[*] JJ.

D.E. HOLBROOK, JR., P.J.

Defendant was convicted by a jury of criminal sexual conduct in the first degree, MCL 750.520b(1)(a); MSA 28.788(2)(1)(a), and was thereafter sentenced to a 5 to 20 year term of imprisonment. Subsequent to sentencing, the prosecutor filed a supplemental information against the defendant charging him as a second felony offender in violation of MCL 769.10, 769.13; MSA 28.1082, 28.1085. Following objections to the supplemental information by defense counsel, defendant pled guilty to the same. At the plea hearing the assistant prosecutor admitted that the supplemental information was filed because defendant had previously exercised his right to a jury trial. Moreover, the prosecutor was aware of the previous conviction. Following defendant's plea to the second offender charge, the trial judge resentenced defendant to the identical 5 to 20 years imprisonment. Defendant appeals claiming his conviction as a second offender must be set aside. We agree and reverse.

In People v Fountain, 407 Mich. 96; 282 NW2d 168 (1979), the Supreme Court held that a prosecutor who knows a defendant has a prior felony record must proceed promptly, if at all, against the person as a habitual offender. In People v Reese, 97 Mich. App. 785; 296 NW2d 172 (1980), it was held that the rule of Fountain should be applied to future cases and to all cases which were pending on appeal at the date of the Fountain decision.

That Fountain applies to instances where a defendant pleads guilty is evident from page 96 of that opinion as it relates to the defendant Jones therein.

Here the prosecutor, although he knew of the previous conviction, waited until after sentencing to proceed with the second offender charge. Such is violative of the principle of Fountain and since this was a case pending on appeal on the date of the Fountain decision the rule set forth in Reese renders Fountain applicable to the instant case. Nor does it matter that the sentences in both instances were the same, for the ramifications of the second offender conviction are great. Accordingly, defendant's conviction as a second offender is set aside and defendant shall serve his sentence pursuant to his conviction for criminal sexual conduct only.

Reversed.

E.E. BORRADAILE, J., concurs in the result only.

NOTES

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