People v. Wilkins

115 Mich. App. 153 (1982) 320 N.W.2d 326

PEOPLE
v.
WILKINS

Docket No. 54593.

Michigan Court of Appeals.

Decided April 8, 1982.

Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, and Anne B. Wetherholt, Assistant Prosecuting Attorney, for the people.

Charles Burke, for defendant on appeal.

Before: BEASLEY, P.J., and D.F. WALSH and M.B. BREIGHNER,^[*] JJ.

PER CURIAM.

Defendant was convicted of carrying a concealed weapon, MCL 750.227; MSA 28.424, and of being an habitual offender, having been convicted of three prior felonies, MCL 769.12; MSA 28.1084. He was sentenced to a term of imprisonment of 15 to 30 years. Both convictions were affirmed by panels of this Court. Subsequently defendant's conviction for carrying a concealed weapon was reversed by the Supreme Court and the case was remanded for a new trial. The habitual offender conviction has not been reversed or vacated by any appellate court. On retrial, defendant was again convicted of carrying a concealed weapon and was thereafter again sentenced, as a fourth felony offender, to a term of 15 to 30 years.

Defendant contends that the habitual offender conviction was automatically reversed when the conviction for carrying a concealed weapon was reversed. Defendant cites no authority for this proposition and we are not so persuaded.

The trial on an habitual offender information charging the defendant as a fourth felony offender concerns the three prior felonies, not the subsequent fourth felony. People v Hastings, 94 Mich. App. 488, 491; 290 NW2d 41 (1979). The statute under which defendant was charged provides in pertinent part as follows:

"Sec. 12. (1) If a person has been convicted of 3 or more felonies, * * * and that person commits a subsequent felony within this state, the person shall be punished upon conviction as follows:

"(a) * * * the court * * * may sentence the person upon conviction of the fourth or subsequent offense to imprisonment in a state prison for the term of life or for a lesser term." (Emphasis supplied.) MCL 769.12; MSA 28.1084.

At the trial on the habitual offender information the people must prove the three prior convictions and the identity of the defendant as the person who committed those offenses. People v Covington, 70 Mich. App. 188, 191; 245 NW2d 558 (1976). The people sustained this burden of proof in the habitual offender proceeding following the original conviction of carrying a concealed weapon and defendant was properly convicted as an habitual offender, having committed three prior felonies. That conviction was never reversed. The factual determinations essential to support that conviction have never been set aside.

Under the statute, therefore, all that is necessary to empower the court to sentence the defendant as a fourth felony offender after the reversal of the fourth felony conviction is that the defendant be convicted again of the fourth felony offense upon retrial.

We find, therefore, that the trial court properly sentenced the defendant as a fourth felony offender upon his reconviction of carrying a concealed weapon.

Affirmed.

NOTES

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