Summary
In People v Teague, 57 Mich. App. 347, 350; 225 N.W.2d 761 (1975), the defendant was convicted of breaking and entering with intent to commit a larceny after he had pled guilty to an unspecified, related misdemeanor.
Summary of this case from People v. Charles JohnsonOpinion
Docket No. 17346.
Decided January 6, 1975.
Appeal from Van Buren, David Anderson, Jr., J. Submitted Division 3 June 12, 1974, at Lansing. (Docket No. 17346.) Decided January 6, 1975.
Ben H. Teague was convicted of breaking and entering an occupied building with intent to commit larceny. Defendant appeals. Affirmed.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and William C. Buhl, Prosecuting Attorney, for the people.
Stuart M. Israel, Assistant State Appellate Defender, for defendant.
Defendant, Ben Harold Teague, was convicted by a jury in Van Buren County Circuit Court of breaking and entering an occupied dwelling with the intent to commit a larceny therein. MCLA 750.110; MSA 28.305. He was sentenced to from 10 to 15 years in prison and now appeals raising several issues for our consideration.
Defendant first contends that his conviction for violation of MCLA 750.110; MSA 28.305 must be set aside because it violates his right not to be placed twice in jeopardy for the same offense guaranteed by the Fifth Amendment to the United States Constitution and because his conviction is contrary to the public policy of this state as expressed in People v McMiller, 389 Mich. 425; 208 N.W.2d 451 (1973). This we are unable to do. The double jeopardy arguments here presented were rejected by our Supreme Court in People v McMiller, supra. Our Supreme Court did find, though, that to allow a defendant to be retried on a higher charge after his guilty plea to a lesser offense has been set aside would be contrary to the public policy of this state. This decision, however, has been held not to be retroactive. People v Potts, 55 Mich. App. 622; 223 N.W.2d 96 (1974), People v McGreevy, 52 Mich. App. 52; 216 N.W.2d 623 (1974). But see People v Goins, 54 Mich. App. 456 ; 221 N.W.2d 187 (1974). We agree with this determination and therefore refuse to reverse defendant's conviction since it was obtained prior to the decisional date of McMiller, supra.
Defendant next argues that the trial judge erred reversibly in failing to disqualify himself from presiding at trial. We find no error as there is no showing of the prejudice or personal bias required for reversal on this ground. People v Cavataio, 34 Mich. App. 126; 190 N.W.2d 718 (1971), lv den, 386 Mich. 779 (1971).
Defendant also asserts that the trial judge erred in his instructions to the jury. Since no objection was raised to the complained of instruction at trial, we refuse to consider it on this appeal. GCR 1963, 516.2.
The prosecution, by motion filed, has asked this Court to strike defendant's remaining issue and to strike the appendix to defendant's brief. This motion is hereby denied for the reason that the issue involves a serious constitutional question which was consistently raised throughout the proceedings below.
Defendant lastly argues that his conviction must be reversed because it is contrary to MCLA 768.4; MSA 28.1027 and violates his rights under the double jeopardy provisions of the state and federal constitutions as enunciated in People v White, 390 Mich. 245; 212 N.W.2d 222 (1973). We disagree. By its own terms, People v White, supra, was limited to its own facts and to "similar factual situations". A close examination of the facts in the instant case shows that this is not the type of situation White was designed to guard against. What we have here is a defendant who has been convicted of two criminal offenses arising out of separate criminal transactions. See People v Jackson, 391 Mich. 323; 217 N.W.2d 22 (1974). The rationale of White, therefore, does not apply. Defendant here is attempting to hide behind his earlier plea to a misdemeanor charge to avoid prosecution on the felony charge. We do not believe White was intended to encompass this type of situation. We find no error.
People v White, 390 Mich. 245, 258 n 6; 212 N.W.2d 222, 227 (1973).
We have also considered defendant's arguments under MCLA 768.4; MSA 28.1027 and find them to be without merit.
Lastly, by way of supplemental brief, defendant seeks to raise an additional argument. The issue has been decided adversely to defendant's position by our Supreme Court in the case of People v Milton, 393 Mich. 234; 224 N.W.2d 266 (1974). See People v Williams, 57 Mich. App. 199, 225 N.W.2d 691 (1974).
Conviction affirmed.
All concurred.