People v. Bollinger

569 N.W.2d 646 (1997) 224 Mich. App. 491

PEOPLE of the State of Michigan, Plaintiff-Appellee,
v.
Thomas James BOLLINGER, a/k/a Thomas Lloyd Schackelford, Defendant-Appellant.

Docket No. 188739.

Court of Appeals of Michigan.

Submitted June 3, 1997, at Detroit. Decided July 15, 1997, at 9:05 a.m. Released for Publication October 8, 1997.

Robert G. Fleming, Williamston, for Defendant-Appellant on appeal.

Before MacKENZIE, P.J., and NEFF and MARKEY, JJ.

PER CURIAM.

Defendant pleaded guilty of absconding on a bond, M.C.L. § 750.199a; M.S.A. § 28.396(1), and was sentenced to two to four years' imprisonment. Defendant specifically reserved the right to appeal the issue whether his plea bargain was illusory because it was induced by a promise to forego prosecution under a supplemental information that was untimely filed.^[1] We vacate defendant's plea and remand pursuant to MCR 6.312.

In People v. Fountain, 407 Mich. 96, 98-99, 282 N.W.2d 168 (1979), our Supreme Court held that a prosecutor who knows that a person has a prior felony record must proceed promptly, if at all, against the person as an habitual offender. The Court subsequently held, in People v. Shelton, 412 Mich. 565, 569, 315 N.W.2d 537 (1982), that "a supplemental information is filed ``promptly' if it is filed not more than 14 days after the defendant is arraigned in circuit court." The Legislature has recently amended M.C.L. § 769.13(1); M.S.A. § 28.1085(1) to provide as follows:

In a criminal action, the prosecuting attorney may seek to enhance the sentence of the defendant as provided under section 10, 11, or 12 of this chapter, by filing a written notice of his or her intent to do so within 21 days after the defendant's arraignment on the information charging the underlying offense or, if arraignment is waived, within 21 days after the filing of the information charging the underlying offense.

Both the Supreme Court and the Legislature have thus expressed their intent to establish a bright-line test for determining whether a prosecutor has filed a supplemental information "promptly."

In the present case, there is no question that the supplemental information was untimely because it was filed more than twenty-one days after defendant's arraignment. M.C.L. § 769.13(1); M.S.A. § 28.1085(1); Shelton, supra at 569, 315 N.W.2d 537. The only published case we have found holding that the prosecution may proceed upon an untimely supplemental information was, in our view, wrongly decided and we decline to follow it. See People v. Rush, 118 Mich.App. 236, 240-241, 324 N.W.2d 586 (1982). Accordingly, we agree with defendant that, insofar as his guilty plea was induced by the prosecutor's promise to forego prosecution of defendant as an habitual offender, the plea bargain was illusory. People v. Mrozek, 147 Mich.App. 304, 306-308, 382 N.W.2d 774 (1985).

Defendant's guilty plea and his plea-based conviction are vacated, and the supplemental information is dismissed. This matter is remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

NOTES

[1] Cf. People v. Lannom, 441 Mich. 490, 494-495, 490 N.W.2d 396 (1992) (guilty plea to habitual offender charge waives challenge to the prosecutor's failure to timely file the supplemental charge).