People v. Galdoni

J. H. Gillis, J.

Defendant was convicted by a jury of breaking and entering an occupied dwelling with intent to commit a larceny therein, contrary to MCLA 750.110; MSA 28.305, and felonious assault, contrary to MCLA 750.82; MSA 28.277.

Defendant was originally charged with a total of four counts, including the two referred to above. He was previously convicted in a bench trial of the second count, statutory rape, contrary to MCLA 750.520; MSA 28.788, and the third count, kidnapping, contrary to MCLA 750.349; MSA 28.581.

Defendant appealed to this Court as of right alleging five instances of error in respect to his later convictions. This Court, in an unpublished per curiam opinion, reversed his convictions concluding that defendant was subject to double jeopardy when he stood trial on the first and fourth counts nine months after being convicted on the second and third counts.

The prosecution alleged that defendant had waived his double jeopardy rights. However, this Court noted that no formal waiver appeared on the record, and, accordingly, concluded that defendant could properly raise the issue on appeal. Since the prosecution did not dispute defendant’s arguments, the issue was decided in favor of defendant and his convictions were reversed.

Our second review of the record reveals evidence which supports the prosecution’s claim that defendant waived his double jeopardy rights:

"The Court: Back on the record. Mr. Florey, you’ve indicated that you had a motion to make. You may proceed.

"Mr. Florey: [defendant’s attorney] Actually, Your Honor, I have two. One is a motion that I might have properly made before, a motion to dismiss both of these charges under the double jeopardy ruling that the Michigan Supreme Court has made in People v White [390 Mich 245; 212 NW2d 222 (1973)], especially concerning the bringing and entering a charge, the Indictment. The Information in this case shows, alleges that the offense took place on September 15th, a time prior to that of two other offenses for which this defendant has been charged.

"The Court: Counsel, I don’t want to interrupt you, and normally wouldn’t, except that I think you’ll find that your predecessor counsel, at the time of the previous non-jury trial, waived any objection that you might have had for not trying all of these cases together. I think the record would reflect that — I’m sorry. Neither one of you were present.

"Mr. Florey: No.

"The Court: But, I am reasonably certain we can check the record, if you choose.

"Mr. Florey: If that’s true, of course, Your Honor, I wouldn’t—

"The Court: Well, with that understanding and that belief of the Court, then I think your arguments would be wasted time. I understand your arguments and, quite honestly, if there were no waiver, and had not been a discussion between the Court and counsel concerning it, I would give serious consideration to an argument under People v White, but the three charges were made, the two trials here — the two charges here involved, I think, were specifically waived insofar as trial was concerned, so that they might be tried at a later date, and that was with the concurrence of Mr. Gladner for the prosecution and Mr. Goldstein for the defendant. We even have a different court reporter.

"Mr. Florey: Is Mr. Burchfield still here? He might remember that. Well, at any rate, Your Honor, it’s either part of the record or it’s not. I think you know the argument here is the same transaction.

’’The Court: I’m sorry I interrupted you. You are certainly entitled to put it on the record.

"Mr. Florey: No, I just want to make sure that it is on the record should your memory not be absolutely correct.

’’The Court: Very well.

"Mr. Florey: And I wouldn’t be surprised if it wasn’t under the circumstances.

’’The Court: I am certain in my own mind, without having any of the transcript before me, that the entire question of People v White, of speedy trial, of all of the rights of this defendant and Mr. Gembarowicz in connection with both of these items, were gone into by this Court and both attorneys, and in what they felt — and I’m speaking of the attorneys — was in the best interest of their clients. They said, 'No, Judge, we don’t want to try those other two cases until afterwards. We want to try the kidnapping/rape charges, and we’ll see where we go from there.’ I concurred in that decision, feeling that this was the right of the defendants, through their attorneys, and I’ve got to assume they discussed with the individual defendants, and thereby allowed only the kidnapping/rape charge to be tried.”

This dialogue strongly suggests that defendant did in fact waive his double jeopardy rights.

This evidence coupled with sworn affidavits signed by defendant’s original counsel and the trial judge leads us to the conclusion that defendant waived his double jeopardy rights.

Accordingly, defendant’s convictions are affirmed.

D. C. Riley, P. J., concurred.