Opinion
Docket No. 77-1163.
Decided November 27, 1978. Leave to appeal applied for.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Robert L. Kaczmarek, Prosecuting Attorney, and Peter C. Jensen and Roland J. Jersevic, Assistants Prosecuting Attorney, for the people.
Norris J. Thomas, Jr., Assistant State Appellate Defender, for defendant on appeal.
On November 17, 1976, defendant was convicted by a jury in Saginaw County Circuit Court of breaking and entering an occupied building with intent to commit larceny therein. MCL 750.110; MSA 28.305. The defendant had been convicted of three previous felonies and on November 29, 1976, the prosecutor filed a supplemental information charging the defendant as an habitual offender. Defendant pled guilty and on January 12, 1977, was sentenced to a prison term of 5 to 15 years for breaking and entering and 7 to 15 years as an habitual offender; such sentences to run concurrently. The defendant appeals as of right.
The defendant raises three issues on appeal, two of which merit discussion here.
First, the defendant argues that it is error to allow the prosecutor to file habitual offender charges after conviction where the prosecutor has knowledge of defendant's record before trial.
Initially, we must point out that due process does not require that a defendant be notified of an habitual offender charge prior to conviction on the last offense. Oyler v Boles, 368 U.S. 448; 82 S Ct 501; 7 L Ed 2d 446 (1962). This Court in People v Marshall, 41 Mich. App. 66; 199 N.W.2d 521 (1972), specifically held that the prosecutor is not required to file a supplemental information prior to trial where he has knowledge of the previous conviction. The Michigan Supreme Court in People v Hendrick, 398 Mich. 410; 247 N.W.2d 840 (1976) (with Justice LEVIN dissenting), cited Marshall for the aforementioned proposition and did not disapprove of the practice.
See Hendrick for a detailed discussion of the current Michigan law in regard to the filing of an habitual offender information.
In light of the case authority set forth above we hold that the prosecutor did not err in filing the habitual offender information after conviction in the present case.
Next, the defendant argues that the trial court erred by imposing separate sentences for breaking and entering and for the habitual offender conviction. We agree.
MCL 769.13; MSA 28.1085 in pertinent part provides:
"If the accused shall plead guilty to such information [habitual offender] or if the jury shall return a verdict of guilty, the court may sentence him to the punishment prescribed in the 3 preceding sections * * *."
It is clear that our habitual offender statute does not provide for a separate substantial criminal offense. Moreover, it operates to enhance the punishment for the last felony conviction. People v Shotwell, 352 Mich. 42; 88 N.W.2d 313 (1958). Therefore, the trial court's imposition of two sentences in the present case was improper.
We affirm but remand with directions to vacate the sentences as imposed and to resentence the defendant for breaking and entering taking into account the penalty enhancement provision set forth in MCL 769.12; MSA 28.1084.