People v. Bigelow , 229 Mich. App. 218 ( 1998 )

581 N.W.2d 744 (1998) 229 Mich. App. 218

PEOPLE of the State of Michigan, Plaintiff-Appellee,
v.
Robert Jeffrey BIGELOW, Defendant-Appellant.

Docket No. 188900.

Court of Appeals of Michigan.

Submitted February 27, 1998, at Lansing. Decided April 10, 1998, at 9:05 a.m. Released for Publication July 29, 1998.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Arthur A. Busch, Prosecuting Attorney, and Donald A. Kuebler, Chief, Appeals, Research, and Training, for People.

State Appellate Defender by Richard B. Ginsberg, for Defendant-Appellant on appeal.

Before CORRIGAN, C.J., and, MacKENZIE, REILLY, FITZGERALD, WHITE, HOEKSTRA, and O'CONNELL, JJ.

PER CURIAM.

Pursuant to MCR 7.215(H)(3), this conflict panel was convened to resolve an inconsistency between this Court's prior, vacated opinion in People v. Bigelow, 225 Mich.App. 806, 571 N.W.2d 520 (1997), and this Court's earlier decision in People v. Passeno, 195 Mich.App. 91, 489 N.W.2d 152 (1992). In accordance with MCR 7.215(H)(1), the prior Bigelow panel was required to follow the precedent of Passeno, supra. Were it not for MCR 7.215(H)(1), the previous panel would have reversed the decision of the lower court.

The conflict at issue involves defendant's convictions of first-degree premeditated murder, M.C.L. § 750.316(1)(a); M.S.A. § 28.548(1)(a), and first-degree felony murder, M.C.L. § 750.316(1)(b); M.S.A. § 28.548(1)(b). In People v. Bigelow, supra, this Court held that such dual convictions arising from the death of a single victim violate double jeopardy. Id. Thus, pursuant to this Court's earlier decision in People v. Passeno, supra, this Court affirmed defendant's conviction of first-degree premeditated murder and vacated defendant's conviction of felony murder. However, the Bigelow panel noted that, were it permitted, it would follow People v. Zeitler, 183 Mich.App. 68, 454 N.W.2d 192 (1990), and hold that "the appropriate remedy to protect defendant's rights against double jeopardy is to modify defendant's judgment of conviction and sentence to specify that defendant's conviction is for one count and one sentence of first-degree murder supported by two theories: premeditated murder and felony murder." Bigelow, supra at 806, 571 N.W.2d 520.^[1]

Following an order by the Court of Appeals en banc invoking the conflict resolution procedure of MCR 7.215(H)(1), this case was reconsidered by this special panel. After due consideration, we resolve the conflict issue in favor of the prior Bigelow opinion. We are persuaded by the prior Bigelow opinion and hereby adopt its reasoning and analysis with regard to the conflict issue only.^[2] Because the conflict involved only this issue, we reinstate the balance of the prior Bigelow opinion. The part of Passeno that addresses the conflict issue is overruled.

During oral argument, defendant also claimed that his convictions of and sentences for both felony murder and the predicate felony of breaking and entering an occupied dwelling with the intent to commit larceny, M.C.L. § 750.110; M.S.A. § 28.305, deprived him of his state and federal constitutional rights against double jeopardy. During oral arguments, the prosecutor conceded that defendant's conviction of breaking and entering must be vacated on double jeopardy grounds if the conviction of felony murder is upheld. We agree that the convictions of and sentences for both felony murder and the predicate offense violated his right against double jeopardy and, accordingly, vacate the conviction of and sentence for breaking and entering. People v. Gimotty, 216 Mich.App. 254, 259-260, 549 N.W.2d 39 (1996).

We direct the lower court to vacate defendant's conviction of and sentence for breaking and entering and to modify defendant's judgment of sentence to specify that defendant's conviction and single sentence is of one count of first-degree murder supported by two theories: premeditated murder and felony murder. The balance of defendant's judgment of sentence and conviction shall remain unchanged. We remand this case to the lower court for proceedings consistent with this opinion.

Vacated in part and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

NOTES

[1] This Court specifically noted:

[T]he interests of justice are better served by Zeitler. Once the felony-murder basis of a defendant's first-degree murder conviction is vacated, and the order has become effective, this ground to support the conviction is gone forever. If on further appeal another court were to find insufficient evidence of premeditated murder, the first-degree murder conviction would be reversed and vacated in total because no basis would remain to support the conviction. Such a result would be unjust and absurd, particularly for a criminal such as defendant who has clearly committed felony murder. [Bigelow, supra at 808, 571 N.W.2d 520.]

[2] Because defendant was unanimously convicted of both premeditated murder and felony murder, we decline to address the unanimity issue raised in defendant's supplemental brief.