DocketNumber： 17761
Citation Numbers： 229 N.W.2d 422, 59 Mich. App. 294
Judges： Quinn, P.J., and Bashara and Van Valkenburg
Filed Date： 3/10/1975
Status： Precedential
Modified Date： 1/12/2023
Michigan Court of Appeals.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, L. Brooks Patterson, Prosecuting Attorney, and Robert C. Williams, Chief Appellate Counsel, for the people.
Scupholm & Underwood, for defendant.
Before: QUINN, P.J., and BASHARA and VAN VALKENBURG,[*] JJ.
VAN VALKENBURG, J.
This case arises because the defendant was operating an automobile at a high rate of speed while pursuing another motor vehicle. An accident resulted and an oncoming motorcycle was struck. Defendant was charged with felonious driving, MCLA 752.191; MSA 28.661, and failure to stop at an accident involving a personal injury, MCLA 257.617; MSA 9.2317.
A preliminary examination was held on February 23, 1973. The district judge bound the defendant over to circuit court on the felonious driving charge. However, the court held that there was insufficient evidence to bind the defendant over on the charge of leaving a personal injury accident. The court then sua sponte entered a charge of failure to stop at a motor vehicle accident involving property damage. MCLA 257.618; MSA 9.2318. *296 The defendant promptly entered a plea of guilty to the added charge.[1]
The defendant appeared in circuit court and moved to quash the information on the felonious driving charge. The defendant argues that a single criminal transaction is involved in this case and that because of the guilty plea he would be placed more than once in jeopardy if he is tried on the felonious driving charge. The defendant places his reliance on People v White, 390 Mich 245; 212 NW2d 222 (1973).
Assuming that the two crimes involved in this case are part of the same transaction, we do not believe that White prevents a trial on the charge still pending. In White the Supreme Court indicated that a basic reason for adopting the same-transaction test was to prevent harassment of a defendant. 390 Mich 258. On the same page with this statement are found footnotes 6 and 8, which we have reproduced in full:
"[6] In adopting the same transaction test, we limit our holding to the facts of the present case and to similar factual situations.
"We are aware that in certain situations, strict application of the same transaction test could lead to the anomalous result of foreclosing prosecution for an offense where the state had made a diligent and good faith effort to protect the defendant's constitutional rights.
"`For example, where a crime is not completed or not discovered, despite diligence on the part of the police, until after the commencement of a prosecution for other crimes arising from the same transaction, an exception to the "same transaction" rule should be made to permit a separate prosecution.' Ashe v Swenson, 397 US 436, 453 n. 7; 90 S Ct 1189, 1199; 25 L Ed *297 2d 469, 481 (1970) (Brennan, J., concurring). We emphasize that our primary objective in adopting the same transaction test is to insure that a criminal defendant receives meaningful protection under the double jeopardy clause. If actual situations should arise in which application of the same transaction test would not serve that objective, we will, in such a case, consider the adoption of limited exceptions to the same transaction test.
* * *
"[8] Today's opinion does not review nor is it designed to affect the present law relating to a defendant's request for the severance of related offenses." (Emphasis added.)
Preventing a trial on the second charge in cases such as the one at bar would do little to further the policies underlying the double jeopardy clause. We cannot see how such a rule would serve to protect a defendant from harassment. The defendant chose to plead guilty and he should abide the consequences.
The situation here seems similar to a case where charges have been severed at the defendant's request. Certainly White would not prevent a separate trial in this situation. The fact that a conviction was based on a plea of guilty may not always serve to distinguish White. See People v West, 54 Mich App 527; 221 NW2d 179 (1974). However, when the defendant offers a guilty plea at a time when both charges are pending, with the full awareness that the prosecutor intends to proceed to trial on the other charge, he has waived his right to a single trial on both charges.
White does not prevent a prosecutor from filing separate charges. It stands only for the proposition that once the defendant has been placed in jeopardy on one of the charges he cannot later be tried on another charge arising out of the same transaction. *298 White does not stand for the proposition that the defendant cannot waive the protection of the double jeopardy clause.
We emphasize that the plea in this case was not a negotiated plea. A case where the defendant had pled guilty in the expectation that the other charge would be dismissed would present different considerations.
The order of the circuit court denying the motion to quash the information is affirmed and the case is remanded for trial.
[*] Former circuit judge, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.
[1] While the district court's action is certainly questionable the validity of the guilty plea is not before us on this appeal.