Opinion
Docket No. 56592.
Decided April 8, 1982.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, George B. Mullison, Prosecuting Attorney, and Thomas J. Rasdale, Assistant Prosecuting Attorney, for the people.
Peter C. Jensen, for defendant on appeal.
Before: DANHOF, C.J., and M.F. CAVANAGH and D.F. WALSH, JJ.
Defendant, Dewey William Carson, was convicted of two counts of third-degree criminal sexual conduct. MCL 750.520d; MSA 28.788(4). The charges arose out of two incidents of sexual intercourse between defendant and a 14-year-old girl. Defendant was also charged, in a supplemental information, with being a habitual (fourth) offender. MCL 769.12; MSA 28.1084. He was convicted on the supplemental information and sentenced to 2 concurrent prison terms of 40 to 120 years. On appeal, defendant alleges that the trial court erred when it denied him his right to a jury trial on the habitual offender charge.
Prior to trial on the criminal sexual conduct charges, defendant waived his right to a jury trial on each of those charges. The waivers were made in open court and were accompanied by written waivers. The record unequivocally indicates that the waivers referred solely to the two criminal sexual conduct charges. There was no mention in open court, or in the written waivers, of the supplemental charge.
After the court found him guilty as charged on the underlying offenses, defendant requested a jury determination of the issues raised by the supplemental information. At that time, the prosecutor and the trial court agreed that defendant was entitled to the requested jury determination. However, at a subsequent hearing, the court denied defendant's request, stating that the grant or denial thereof was a matter within the court's discretion. Thereafter, the court found that defendant had been previously convicted of four felonies. He was accordingly sentenced to 2 prison terms of 40 to 120 years.
We agree with defendant that he was improperly denied his statutory right to a jury determination of the issues raised by the supplemental information. MCL 769.13; MSA 28.1085 clearly provides for such jury determination. An accused may waive trial by jury on a supplemental information in the manner provided by the code of criminal procedure. MCL 769.13; MSA 28.1085, MCL 763.3; MSA 28.856.
In People v Marcellis, 105 Mich. App. 662; 307 N.W.2d 402 (1981), this Court found that waiver of jury trial had been ineffective because not made in open court. Because of this fatal defect, the Court did not reach the question of whether a general written waiver on the underlying offense constituted an effective waiver on the supplemental charge. (See Judge ALLEN'S dissenting opinion and the majority's agreement with the dissent's jury waiver discussion.) On the facts of the instant case, we hold that there was no waiver of jury determination of the issues raised in the supplemental information.
The trial court erred in ruling that the impaneling of a jury for a determination of the issues raised in the supplemental information was a discretionary matter. Because defendant's unequivocal request for such a jury determination was improperly denied, we vacate the trial court's findings on the supplemental information and remand for resentencing on the criminal sexual conduct convictions. If, however, the prosecutor is persuaded that the ends of justice would be served better by retrial of defendant on the supplemental information, the prosecutor shall so notify the trial court within 30 days of the release date of this opinion and the defendant shall be retried on the issues raised in the supplemental information. In the event the identical supplemental information is refiled by the prosecutor, the two 1971 convictions which arose out of the same transaction shall be considered as one conviction for purposes of the habitual offender determination. See People v Ross, 84 Mich. App. 218; 269 N.W.2d 532 (1978).
The cases relied on by the prosecutor are inapposite. The issue here is not whether defendant had the right to a new jury when tried on the habitual offender information. That determination is discretionary. People v Schram, 98 Mich. App. 292; 296 N.W.2d 840 (1980).
In contrast to the situation in People v Ross, there was no reversible error in this case by virtue of the inclusion of the two 1971 convictions in the supplemental information. In this case, defendant was determined to have been convicted of four specific previous felonies, including the 1971 convictions. Only three prior convictions are required to support a fourth offender conviction. MCL 769.12; MSA 28.1084.
We have reviewed defendant's remaining allegations of error and are not persuaded that they merit discussion.
Defendant's convictions of third-degree criminal sexual conduct are affirmed. His habitual (fourth) offender conviction is reversed and we remand for resentencing or for retrial on a supplemental information consistent with this opinion.