Opinion
Docket No. 117451.
Decided August 9, 1989.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, L. Brooks Patterson, Prosecuting Attorney, Robert C. Williams, Chief, Appellate Division, and Margaret G. Horenstein, Assistant Prosecuting Attorney, for the people.
Lynn Rose, for defendant on appeal.
Before: MacKENZIE, P.J., and DOCTOROFF and SAWYER, JJ.
ON REMAND
This case reappears before us on remand from the Supreme Court, People v Perryman, 432 Mich. 235; 439 N.W.2d 243 (1989). The Supreme Court vacated our previous opinion, 167 Mich. App. 269; 421 N.W.2d 660 (1988), and remanded the case to this Court for a redetermination of the issue related to the absconding.
The question in this case is whether the language in MCL 750.199a; MSA 28.396(1) that "any person who shall abscond on or forfeit a bond given in any criminal proceedings wherein a felony is charged shall be deemed guilty of a felony" applies to defendants who are out on bond after conviction but before sentencing. In our previous opinion we held that it did not and reversed defendant's conviction for absconding on bond.
The Supreme Court held in Perryman, supra, that the absconding statute may be applied to a defendant who has been convicted of a felony and released on bond pending delayed sentencing. Since the absconding statute extends to postconviction proceedings, we affirm defendant's conviction for absconding and forfeiting bond.
We turn now to the issue raised in defendant's original brief on appeal, that the prosecution abused its discretion in charging defendant as an habitual offender, fourth offense. MCL 769.13; MSA 28.1085 states that "[i]f after conviction and either before or after sentence it appears that a person convicted of a felony has previously been convicted of crimes . . . the prosecuting attorney . . . may file a separate or supplemental information . . ." Questions of prosecutorial misconduct are decided on a case-by-case basis. People v Burnett, 166 Mich. App. 741, 754; 421 N.W.2d 278 (1988). While we acknowledge that the trial court expressed concern over the habitual-offender charge, we cannot say that the adding of a supplemental charge, by itself, constitutes prosecutorial vindictiveness. See People v Goeddeke, 174 Mich. App. 534, 537; 436 N.W.2d 407 (1989). We therefore find no error in the supplemental charge.
Affirmed.