text:
    LENAWEE COUNTY BOARD OF COMMISSIONERS v ABRAHAM
    Docket No. 78-4496.
    Submitted October 2, 1979, at Lansing.
    Decided November 20, 1979.
    In 1967, Eppa and Hazel Plate entered into an agreement with Loch Erin, Inc., giving Loch Erin the option to purchase a 118-acre tract of land and the right to work on the land. Loch Erin, Inc., was a real estate development company which was constructing a lake on property adjacent to the tract in question. The option expired without having been exercised and the parties executed a second option agreement in 1969. According to the second agreement Loch Erin was to purchase the tract, with payments made in installments, and had the right to excavate and build dikes and flow water on the land. Loch Erin was to receive a deed upon payment of the full purchase price. A dike was built and the property was flooded when Loch Erin defaulted on the installment payments. In 1971 the Plates sold the tract to Abraham Realty, Inc. and Richard and Marilyn Abraham, subject to "visible easements”. About 25 or 30 acres were under water at the time. Abraham Realty then sold its one-half interest in the land to John and Lorraine Abraham. All of the Abrahams were shown a copy of the second option agreement by Mr. Plate at the time of sale. In 1972 Abraham Realty brought an action to quiet title, and a consent judgment gave Loch Erin, Inc., a third option to purchase, which was never exercised. Loch Erin, Inc., eventually transferred its interests in the project to another party.
    In 1975, and again in 1977, proceedings were held under the Inland Lake Level Act to determine the proper level of the lake. The Abrahams were duly notified but did not appear at the 1977 hearing nor did they appeal when a special assessment district was created pursuant to the act for the purpose of maintaining the lake level. The county drain commissioner had been named, at the first hearing, to be responsible for maintaining the lake. When the drain commissioner attempted to make necessary repairs and to install a drainage pump system, the Abrahams refused to let the commissioner on their land. The Lenawee County Board of Commissioners thereupon brought an action against the Abrahams, seeking a declaration of rights. The Loch Erin Property Owners Association, a group of persons holding land contiguous to the lake, intervened in the action. The Lenawee Circuit Court, C. Ralph Kohn, J., held that the Abrahams were estopped from interfering with the flooding necessary to reach the full lake level or to prevent the county from maintaining the lake level and that they were not entitled to any compensation. The Abrahams appeal. Held:

      References for Points in Headnotes
    [1] 4 Am Jur 2d, Appeal and Error § 119.
    5 Am Jur 2d, Appeal and Error § 872.
    [2] 28 Am Jur 2d, Estoppel and Waiver § 53.
    78 Am Jur 2d, Waters §§ 82-85.
    [3] 78 Am Jur 2d, Waters §§ 206-209.
    [4] 78 Am Jur 2d, Waters § 297 et seq.

      1. The Abrahams are estopped, by their acquiescence in the Inland Lake Level Act proceedings, from preventing the necessary repairs and improvements to maintain the lake level.
    2. The language of the second option agreement between the Plates and Loch Erin, Inc., was sufficient to create an easement for the flooding of the land. Because the Abrahams purchased the land with full knowledge of that agreement and of the flooding which was already in progress, they are estopped from now recovering any compensation for the flooding.
    Affirmed.
    1. Appeal and Error — Declaratory Judgments — De Novo Review.
    Review of declaratory judgments is conducted de novo; however, the Court of Appeals will not reverse a trial court’s factual findings unless they are clearly erroneous.
    2. Estoppel — Inland Lakes — Lake Levels — Statutes.
    An interested party who "stands by” or acquiesces in a determination of a lake level pursuant to proceedings held under the Inland Lake Level Act is estopped from subsequently denying the county the necessary access to land for the purpose of improving and maintaining an inland lake level as determined by the statutory proceedings (MCL 281.61 et seq.; MSA 11.300[1] et seq.).

    3. Easements — Water — Flowage — Successors to Estate.
    The right to flow water over another’s land is an easement, which can be acquired only by prescription or by a writing; once established, an easement normally is binding against successors to the servient estate.

      4. Easements — Purchasers of Land — Injunction — Damages.
    A party who purchases land with full knowledge of the land’s condition and of an easement granted to another may not thereafter obtain injunctive relief against the other’s use of the land consistent with the easement, nor may the purchaser obtain damages for such use.

      Harvey A. Koselka, Prosecuting Attorney, for . plaintiff.

      Robertson, Bartlow & DesChenes, P.C., for defendants Abraham.

      Kerr, Russell & Weber (by Robert R. Nix, II), for the Loch Erin Property Owners Association.
    Before: Danhof, C.J., and N. J. Kaufman and D. C. Riley, JJ.
   D. C. Riley, J.

The immediate proceeding before us on appeal involves a tract of land consisting of 118 acres in Lenawee County.

A brief recitation of the facts is necessary for a clear understanding of the three issues raised by the defendants and our disposition of same.

In November, 1963, Eppa E. and Hazel Plate, defendants’ predecessors, purchased 178 acres of land for use as farm land. This property consisted of 60 acres on the south side of Reed Road upon which several buildings existed and a 118-acre tract on the north side of the road. The latter is the subject of this litigation.

On May 14, 1967, the Lenawee County Board of Supervisors granted permission to Loch Erin, Inc., a land development corporation, to construct a dam to impound the waters of Wolf Creek to create Loch Erin, a lake of 650 acres. The dam was constructed, many adjacent lots were sold and sewer construction permits were granted during the years following.

In 1967, Eppa and Hazel Plate entered into an option contract with Loch Erin, Inc., giving the latter the right to purchase 118 acres of the former’s neighboring land. The option agreement gave Loch Erin, Inc., the right to work on this land, and timber was removed from the property during this period. The option to purchase the land expired without having been exercised and a second such agreement was executed in 1969. At this point, the dam, but not the dikes, had been constructed and Mr. Plate realized that the land in question would be flooded. In exchange for paying a total purchase price of $42,500, payable in installments of $5000 each, Loch Erin, Inc., was to have the right to remove vegetation, to excavate and build dikes to flow water on the land up to 926 feet above sea level and to ultimately receive a deed to the property. When Loch Erin, Inc., defaulted after three installments, a dike had already been built on the property and the property had been flooded with water. Plate never demanded removal of the dike or the water after default.

In July, 1972, the Plates sold the 118 acres to Abraham Realty, Inc., and defendants Richard and Marilyn Abraham. The recorded deed stated that it was subject to visible easements. At this time, approximately 25 to 30 acres of the tract were under water. (Approximately 80 of the 118 acres are under water when the lake is entirely full.) In August, 1971, Abraham Realty, Inc., conveyed its undivided one-half interest in the property to defendants John and Lorraine Abraham. At this time, the dam had been built and a dike was being constructed. Eppa Plate showed defendants a copy of the second option agreement. Thus, defendants clearly knew about the Loch Erin project and were also aware of the existence of the lake at the time of purchase.

In 1972, Abraham Realty brought an action to quiet title against Loch Erin, Inc., and the Plates, which resulted in a consent judgment giving Loch Erin, Inc., a third option to purchase the property which was never exercised. This option contained no provision for removal of the water and/or dike in the event of default. In 1973 or 1974, financially troubled Loch Erin, Inc., transferred its interest in the project to Leisurealty, Corporation.

A lake level proceeding was brought under the Inland Lake Level Act of 1961, in May, 1975, to determine the proper lake level of Loch Erin. Defendants, named as third-party defendants therein; .filed a petition praying that the drain commissioner be nominated to assume responsibility for the lake level, determined by the court to be 920 feet above sea level.

In June, 1977, a second lake level proceeding was instituted. Defendants were notified, but did not personally appear. The court ordered the lake level to be set at 926 feet, so it would be a full lake rather than a swamp. A special assessment district was created by the court in September, 1977, for the purpose of maintaining Loch Erin at 926 feet. Despite receipt of notice, defendants did not appear at the special assessment proceedings nor did they appeal the lake level assessment.

At the time of trial, Loch Erin was weedy and totally incapable of use by neighboring owners. Certain repairs such as clearing out grass and repairing the dikes are necessary to make the lake usable once again. In response to defendants’ refusal to allow the Lenawee County Drain Commissioner on their property to make necessary repairs and install a drainage pump system, as well as notification from defendants that they wanted use of their total parcel for agricultural purposes and would sue to force removal of the lake, plaintiff brought this declaratory judgment action. Soon after, Loch Erin Property Owners Association successfully moved for intervention.

On September 8, 1978, a Lenawee County Circuit Court judge ruled that defendants were estopped from asserting any property interests in the tract that would interfere with the flooding necessary for the lake or that would prevent plaintiff from maintaining it. Further, it was ruled that defendants were not entitled to any compensation since there was no taking by plaintiffs. Defendants appeal from the denial of their motion for new trial.

Review of declaratory judgments is conducted de novo by the Court of Appeals. Henry v Henry, 362 Mich 85, 98; 106 NW2d 570 (1960), Curbelo v Macomb County Community College Trustees, 38 Mich App 432, 433; 196 NW2d 843 (1972). However, this Court will not reverse a trial court’s facutal findings unless they are clearly erroneous. Welfare Employees Union v Civil Service Comm, 28 Mich App 343, 349; 184 NW2d 247 (1970). We find no such error in the present case.

We find initially that defendants are estopped from denying plaintiff access to the land because of the Inland Lake Level Act of 1961 proceedings, MCL 281.61 et seq., MSA 11.300(1) et seq. The avowed purpose of this act is to determine and maintain inland lake levels for public welfare and benefit. In re Martiny Lakes Project, 381 Mich 180, 187; 160 NW2d 909 (1968). As stated in MCL 281.70; MSA 11.300(10):

"The court shall hear proofs and allegations of all parties interested. The court shall determine the level to be established and maintained * * *.” (Emphasis added.)

There is no question that defendants were vitally interested in the status of Loch Erin. Yet they failed to personally appear, or to contest or appeal the lake level determinations. In such a case, we conclude that a "standing by” or "acquiescence by conduct” type of estoppel precludes defendants from now preventing the dike repairs and improvements. See BPA II v Harrison Twp, 73 Mich App 731, 735; 252 NW2d 546 (1977), Green v Millman Brothers, Inc, 7 Mich App 450, 457; 151 NW2d 860 (1967). See also Naimish v Wardlow, 362 Mich 198; 106 NW2d 770 (1961).

We also conclude that defendants are estopped from gaining any relief regarding the flooding of their land. Since defendants and defendants’ predecessors either granted or tolerated an easement to Loch Erin, Inc., neither an injunction nor damages is appropriate.

The right of flowage is an easement that can only be acquired by prescription or by a writing such as a deed. Beaverton Power Co v Wolverine Power Co, 245 Mich 541, 546; 222 NW 703 (1929), Glidden v Beaverton Power Co, 223 Mich 383, 395; 193 NW 862 (1923). A written contract may also suffice to establish an easement. See Outhwaite v Rodgers, 214 Mich 346; 183 NW 74 (1921). Once established, an easement normally is binding against successors to the servient estate. See Kraft v Miller, 314 Mich 390; 22 NW2d 857 (1946).

In the instant case, the second option agreement between the Plates and Loch Erin, Inc., clearly satisfies the statute of frauds requirement under Michigan law. MCL 566.106; MSA 26.906. We believe that its language was sufficient to establish an easement to flow water over defendants’ land.

Injunctive relief will not be available to an owner if he purchases land with full knowledge of the land’s condition and of easements granted to others. Gardens of Rest, Inc v Upper Michigan Power & Light Co, 322 Mich 153; 33 NW2d 741 (1948), Morrison v Queen City Electric Light & Power Co, 181 Mich 624; 148 NW 354 (1914). This is true for damages as well. Glidden, supra.

In Glidden, supra, the plaintiff brought suit for damage to his land. Defendant claimed that he had the right to flood the land through a specific deed granted to him by plaintiffs predecessor. The Court denied damages and stated that even though there was only a small amount of plaintiffs land under water at the time of purchase, that, combined with knowledge of conveyance of flowage rights and other water power developments, was sufficient to have put plaintiff on notice of possible encroachments on his full ownership.

The same is certainly true in the instant case. The deed accepted by defendants specifically stated that the conveyance was subject to all "visible easements”. While at that time only 25 to 30 acres were under water, we believe that this was sufficient to put defendants on notice of a possible encroachment on their property. Defendants readily admitted that they were aware of the dam and the lake. Further, the Plates showed them the second option agreement outlining the extent of possible development on the land in question. Far from being innocent purchasers, defendants should have investigated or protested the limitations on their property at the time of purchase. We conclude that defendants are estopped from now recovering compensation for a condition to which the property was subject at the time of purchase.

Affirmed. Costs to appellees.


source: Caselaw Access Project

author: D. C. Riley, J. N. J. Kaufman, J.

license: Public Domain

text:
    PEOPLE v SHELTON
    Docket No. 78-4559.
    Submitted October 3, 1979, at Lansing.
    Decided November 20, 1979.
    Defendant, Johnie Shelton, was convicted, on his plea of guilty, of felonious assault, carrying a concealed weapon and felony-firearm in the Oakland Circuit Court, Robert L. Templin, J. Defendant appeals alleging several constitutional claims. Held:

    1. The constitutional guarantee against double jeopardy protects against multiple punishment for the same offense, and the test to determine whether there was multiple punishment for the same offense is either whether each crime requires proof of a fact that the other crime does not require or whether the Legislature expressed a clear intent to define and punish separate offenses based on one incident. There is no double jeopardy violation for conviction of both felonious assault and carrying a concealed weapon since they require proof of distinct elements. There is no double-jeopardy violation for conviction of felonious assault and felony-firearm since the Legislature has clearly expressed its intent to define and punish separate offenses based on one incident.
    2. The felony-firearm statute does not violate the constitutional requirement of reenactment and republication of amended statutes because amendment by implication is not an evil sought to be avoided by the constitutional provision.
    Affirmed.
    N. J. Kaufman, J., dissented. He would hold that defendant may not be convicted of carrying a concealed weapon and felony-firearm because the felony-firearm statute specifically precludes that combination of convictions. He would vacate the felony-firearm conviction.
    References for Points in Headnotes
    [1-3, 5] 21 Am Jur 2d, Criminal Law §§ 188, 189.
    [4] 73 Am Jur 2d, Statutes § 140.
    Applicability of constitutional requirement that repealing or amendatory statute refer to statute repealed or ammended, to repeal or amendment by implication. 5 ALR2d 1270.

      Opinion op the Court
    1. Criminal Law — Constitutional Law — Double Jeopardy — Multiple Punishments.
    The constitutional guarantee against double jeopardy protects against multiple punishment for the same offense, and the test to determine whether there was multiple punishment for the same offense is either whether each crime requires proof of a fact that the other crime does not require or whether the Legislature expressed a clear intent to define and punish separate offenses based on one incident.
    2. Criminal Law — Constitutional Law — Double Jeopardy — Felonious Assault — Carrying a Concealed Weapon.
    There is no double jeopardy violation for conviction of both felonious assault and carrying a concealed weapon since they require proof of distinct elements.
    3. Criminal Law — Constitutional Law — Double Jeopardy — Felonious Assault — Felony Firearm.
    There is no double-jeopardy violation for conviction of felonious assault and felony-firearm since the Legislature has clearly expressed its intent to define separate offenses based on one incident.
    4. Constitutional Law — Amendment op Statutes — Felony-Firearm.
    The felony-firearm statute does not violate the constitutional requirement of reenactment and republication of amended statutes because amendment by implication is not an evil sought to be avoided by the constitutional provision (Const 1963, art 4, § 25).
    Dissent by N. J. Kaufman, J.
    5. Criminal Law — Statutes — Felony-Firearm — Carrying a Concealed Weapon.

      Conviction for carrying a concealed weapon and felony-ñrearm is precluded under the felony-ñrearm statute; therefore, the multiple conviction of carrying a concealed weapon, felony-ñrearm and felonious assault for a single incident may not stand and the felony-conviction should be vacated on appeal (MCL 750.227b; MSA 28.424[2]).

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, L. Brooks Patterson, Prosecuting Attorney, Robert C. Williams, Chief Appellate Counsel, and Michael J. Modelski, Assistant Prosecuting Attorney, for the people.

      Bolden & Blake Professional Corporation (by Elliot D. Margolis), for defendant.
    Before: Danhof, C.J., and N. J. Kaufman and D. C. Riley, JJ.
   D. C. Riley, J.

Defendant was convicted, on his plea of guilty, of felonious assault, MCL 750.82; MSA 28.277, carrying a concealed weapon, MCL 750.227; MSA 28.424, and possession of a firearm during the commission of a felony, MCL 750.227(b); MSA 28.424(2). He now appeals these convictions and the corresponding prison terms imposed.

Defendant asserts two double jeopardy claims on appeal, contending that double sentencing is unconstitutional when imposed for both felonious assault and felony-firearm, and both felonious assault and carrying a concealed weapon. Neither claim is meritorious.

It is well settled that there is no double jeopardy violation for dual punishment if (1) each offense requires proof of a fact that the other does not, People v Davenport, 89 Mich App 678; 282 NW2d 179 (1979), or, (2) the Legislature expressed a clear intent to define and punish separate offenses based on one incident. Wayne County Prosecutor v Recorder’s Court Judge, 406 Mich 374; 280 NW2d 793 (1979). The Supreme Court has recently concluded that the felony-firearm statute does not violate double jeopardy based on the second exception. Wayne County Prosecutor, supra. We are also convinced, based on the first exception, that there is no double jeopardy violation for conviction of felonious assault and carrying a concealed weapon. Carrying a concealed weapon requires proof that an accused carried a weapon and that it was concealed on or about his person. The underlying statute was enacted to discourage quarreling persons from suddenly drawing and using concealed weapons. People v Davenport, supra. Felonious assault, on the other hand, is an assault, a positive act against another person committed with a dangerous weapon. Its purpose is to discourage assaulting persons from inflicting even more serious injuries upon one another. People v Van Diver, 80 Mich App 352; 263 NW2d 370 (1977). As these crimes require proof of distinct elements and do not overlap in purpose, there is no double jeopardy violation. See People v Burkhart, 38 Mich App 44; 195 NW2d 794 (1972), People v Hooper, 36 Mich App 123; 193 NW2d 203 (1971).

Defendant also contends that the felony-firearm act is unconstitutional for failure to comply with art IV, § 25 of the Michigan Constitution requiring republication or reenactment of former laws when they are altered by new ones. This point was addressed by the Court of Appeals in People v Gary Hughes, 85 Mich App 674; 272 NW2d 567 (1978), wherein it was held that this provision does not apply to amendments by implication, as in the instant case.

Finally, defendant asserts that his sentence was predicated on inaccurate information. We find no evidence in the briefs or record to substantiate this claim. Accordingly, defendant’s convictions must be affirmed.

Danhof, C.J., concurred.

N. J. Kaufman, J.

(dissenting). Noting that carrying a concealed weapon, MCL 750.227; MSA 28.424, is specifically excepted under the felony-firearm statute, MCL 750.227(b); MSA 28.424(2), I must disagree with the majority’s conclusions. It is true that no double jeopardy problems would arise from convictions of felonious assault, MCL 750.82; MSA 28.277, and carrying a concealed weapon. Similarly, no double jeopardy violation would arise where a defendant is convicted of both felonious assault and felony-firearm. However, this ignores the fatal combination of multiple convictions for carrying a concealed weapon and felony-firearm, a combination expressly precluded under the felony-firearm statute.

In view of the foregoing, I would affirm the felonious assault and carrying a concealed weapon convictions, but vacate the felony-firearm conviction.

       "(1) A person who carries or has in his possession a firearm at the time he commits or attempts to commit a felony, except the violation of section 227 or section 227a, is guilty of a felony, and shall be imprisoned for 2 years. Upon a second conviction under this section, the person shall be imprisoned for 5 years. Upon a third or subsequent conviction under this section, the person shall be imprisoned for 10 years.
      "(2) The term of imprisonment prescribed by this section shall be in addition to the sentence imposed for the conviction of the felony or the attempt to commit the felony, and shall be served consecutively with and preceding any term of imprisonment imposed for the conviction of the felony or attempt to commit the felony.
      "(3) The term of imprisonment imposed under this section shall not be suspended. The person subject to the sentence mandated by this section shall not be eligible for parole or probation during the mandatory term imposed pursuant to subsection (1).”


author: R. B. Burns, J.

text:
    PEOPLE v BUELOW
    Docket No. 78-4634.
    Submitted September 4, 1979, at Grand Rapids.
    Decided November 20, 1979.
    Stephen Buelow was convicted, on his plea of guilty, of carrying a concealed weapon, Kalamazoo Circuit Court, Robert L. Borsos, J. The defendant appeals, alleging that the conviction in the state court was a violation of the constitutional prohibitions against double jeopardy because he had previously been convicted in Federal court for possession of the same weapon arising out of the same incident. Held:

    The interests sought to be protected by both the Federal statute and the state statute prohibiting the carrying of certain weapons are not substantially different. The interest sought to be protected by the state statute was adequately protected by the prosecution in Federal court. The defendant’s state court conviction following the Federal prosecution, was, therefore, a violation of double jeopardy.
    Reversed.
    Criminal Law — Double Jeopardy — Single Offense — State and Federal Prosecutions.
    The interests sought to be protected by the state statute prohibiting the carrying of a concealed weapon and its Federal counterpart are not substantially different and a Federal prosecution under the Federal statute vindicates the state’s interest in seeking to protect the citizens of the state from the misuse of dangerous weapons; therefore, it is a violation of the constitutional prohibitions against double jeopardy for the state to prosecute a defendant under the state statute after the defendant has been subject to a Federal prosecution where both prosecutions arise out of a single incident.
    References for Points in Headnotes
    [1] 21 Am Jur 2d, Criminal Law §§ 166, 192.
    Acquittal or conviction under Federal statute as bar to prosecution under state or territorial statute based on the same act or transaction, and vice versa. 18 ALR Fed 393.

      Frank J. Kelley, Attorney General, Robert A.

      Derengoski, Solicitor General, James J. Gregart, Prosecuting Attorney, and Stephen M. Wheeler, Principal Appellate Attorney, for the people.

      DeVries & Lamb, P.C., for defendant on appeal.
    Before: Allen, P.J., and R. B. Burns and T. M. Burns, JJ.
   R. B. Burns, J.

The defendant, Stephen Buelow, pled guilty to the offense of carrying a concealed weapon, MCL 750.227; MSA 28.424, was sentenced and now appeals on the ground that the state prosecution on this offense violated his rights under the double jeopardy clauses of the United States and Michigan Constitutions because he had previously been convicted in Federal court for possession of the same weapon.

On February 9, 1978, the defendant appeared at Western Michigan University, in the City of Kalamazoo, with a duffel bag. He voluntarily gave the bag to Robert Hardin, a Sergeant Major in the United States Army, and told Sergeant Hardin that there was a sawed-off shotgun in the bag. The sawed-off shotgun was seized by an officer of the Western Michigan University Police.

On March 28, 1978, the defendant was arraigned in the United States District Court for the Western District of Michigan on a charge that on February 9, 1978, in the City of Kalamazoo, defendant possessed the sawed-off shotgun which was not registered to him in violation of various sections of the United States Code. The defendant pled guilty to the charge and in May, 1978, he was committed to the custody of the United States Attorney General for a period of six years. The Federal court recommended that the sentence run concurrently with whatever sentence the state might impose upon defendant for any other offense arising out of this incident.

Defendant filed a motion to quash the state information on the ground that he was twice being placed in jeopardy for the same offense because he was prosecuted for possession of the same weapon by both the state and Federal authorities. Defendant’s motion was heard on June 12, 1978, and was denied.

On August 28, 1978, the defendant pled guilty to the charge of carrying a concealed weapon, pursuant to a plea agreement by which the prosecutor agreed to dismiss a supplemental information charging defendant as a third offender. MCL 769.11; MSA 28.1083. At the plea taking proceedings, the defendant explained that he possessed the shotgun on February 9, 1978, in an effort to dispose of the weapon by surrendering it to the ROTC department at Western Michigan University.

The defendant was sentenced in the Kalamazoo County Circuit Court to a prison term not exceeding five years nor less than three years. Defendant is currently serving his sentence at a state correctional facility.

Before us now is defendant’s assertion that the state prosecution violated his right to be free from double jeopardy under both US Const, Am V and Const 1963, art 1, § 15.

Const 1963, art 1, § 15 provides in relevant part:

"No person shall be subject for the same offense to be twice put in jeopardy.”

In People v Cooper, 398 Mich 450; 247 NW2d 866 (1976), the Michigan Supreme Court held that:

"Const 1963, art 1, § 15 prohibits a second prosecution for an offense arising out of the same criminal act unless it appears from the record that the interests of the State of Michigan and the jurisdiction which initially prosecuted are substantially different. Analysis on a case-by-case basis cannot be avoided.” Cooper, at 461.

Several factors were deemed by the Court to be pertinent to the analysis of whether the State of Michigan had substantially different interests than those of the jurisdiction which initially had prosecuted the defendant.

"Such factors, for prosecutions arising out of the same criminal act, may include whether the maximum penalties of the statutes involved are greatly disparate, whether some reason exists why one jurisdiction cannot be entrusted to vindicate fully another jurisdiction’s interests in securing a conviction, and whether the differences in the statutes are merely jurisdictional or are more substantive.” Cooper, 398 Mich at 461.

The defendant in Cooper had been tried and acquitted in Federal court of bank robbery. Thereafter, he was prosecuted and convicted in our state court on charges of bank robbery and assault with intent to rob being armed, arising from the same incident. Both convictions were reversed by the Supreme Court as being in violation of defendant’s right to be free from double jeopardy under Const 1963, art 1, § 15. The Court had found that the interests sought to be protécted by the state and Federal statutes were not substantially different because "[t]he laws of both jurisdictions seek to insure the safety of individuals and the protection of private property”. 398 Mich at 462.

Under Cooper, we begin our analysis of whether the state and Federal interests in the present case are substantially different by comparing the maximum penalty which can be imposed under the relevant statutes, and in this, we find no great disparity.

We turn next to a consideration of whether the Federal government can be entrusted to vindicate fully our state’s interest in securing a conviction. The interest which both the state and Federal governments seek to secure is the protection of its citizens from the misuse of dangerous weapons. The state statute attempts to achieve this interest by penalizing the concealment of certain weapons; the Federal statute attempts to vindicate this interest by mandating registration of certain weapons. Both statutes are designed to control and regulate the use of firearms.

The Court recognizes that the purposes and protections of the two statutes are not identical. However, to require an identity of purpose and design would limit the scope of the Michigan Double Jeopardy Clause to cases in which the state and the Federal governments have brought identical charges. In light of the broad interpretation given to the Michgian Double Jeopardy Clause by the Supreme Court in Cooper, we believe that no such limitation should be put on the protections of our Double Jeopardy Clause. We consider, therefore, not the narrow and specific purposes of the statutes, but rather the fact that each is a means of controlling and regulating the use of firearms, and find no reason why in this case the interests of the State of Michigan cannot be vindicated by the Federal prosecution.

We conclude that the interests sought to be protected by both the state and Federal statutes are not substantially different. Accordingly, defendant’s conviction is reversed.

       26 USC 5845(a), 5861(d), and 5871.

       18 use 2113.

       MCL 750.531; MSA 28.799.

         MCL 750.89; MSA 28.284.

       Defendant Cooper’s conviction for attempted murder, MCL 750.91; MSA 28.286, which arose out of the same incident, was reversed by the Court of Appeals and was not before the Supreme Court.

       The maximum penalty set forth in 26 USC 5871 is 10 years and/ or $10,000. The maximum penalty for violation of MCL 750.227; MSA 28.424 is 5 years or $2,500.


author: N. J. Kaufman, J.

text:
    WULF OIL CORPORATION v GREBE DRILLING COMPANY
    Docket No. 78-4710.
    Submitted October 3, 1979, at Lansing.
    Decided November 20, 1979.
    Leave to appeal denied, 408 Mich 856.
    Plaintiffs, Wulf Oil Corporation, a Wyoming corporation, and Claude B. Hamill, entered into a drilling contract with Grebe Drilling Company, a Wyoming corporation. The contract was executed in and was to be carried out in the State of Wyoming. Plaintiffs thereafter brought an action in a State of Wyoming district court against Grebe Drilling Company, Carl E. Grebe, president of Grebe Drilling and Winston E. Miller, attorney for Grebe and Grebe Drilling. Both Grebe and Miller are Michigan residents. Plaintiffs’ complaint alleged that: (1) the drilling contract had been breached; (2) the defendants had charged debts to plaintiffs without plaintiffs’ consent; and (3) defendants defaulted on two promissory notes, one of $25,862.30 executed by Grebe Drilling to plaintiff Wulf Oil and the other of $7,698.06 executed on behalf of Carl Grebe by and through his agent Winston Miller. Plaintiffs further alleged that Miller was in the State of Wyoming when he signed the $7,698.06 note personally and/or as agent for Carl Grebe. Defendants failed to respond to the Wyoming complaint and the Wyoming court entered a default judgment in the amount of $70,000, plus interest and costs. Plaintiffs filed a complaint in Michigan to enforce the Wyoming judgment. Defendants again defaulted and the Midland Circuit Court, David S. DeWitt, J., entered a default judgment for $70,000 against defendants "jointly and individually”. Following a denial of their motion to set aside the default judgment, defendants Carl Grebe and Winston Miller appealed. The Court of Appeals granted plaintiffs’ motion to affirm with respect to defendant Grebe, but denied the motion to affirm with respect to defendant Miller. Docket No. 77-4624, order of April 7, 1978. In an unpublished opinion, the Court of Appeals remanded the matter to the trial court for a redetermination of Miller’s motion to set aside the default judgment. Docket No. 77-4624, unpublished opinion of April 24, 1978. On remand, the trial court again denied defendant Miller’s motion to set aside the default judgment, finding that the Wyoming court had jurisdiction over Miller under the Wyoming long-arm statute, since Miller had transacted business in that state. Miller appeals. Held:

      References for Points in Headnotes
    [1] 5 Am Jur 2d, Appeal and Error § 702 et seq.

    [2] 47 Am Jur 2d, Judgments § 1257.
    [3] 47 Am Jur 2d, Judgments § 919.
    [4] 20 Am Jur 2d, Courts §§ 146, 146.3.
    Validity as a matter of due process, of state statutes or rules of court conferring in-personam jurisdiction over nonresidents or foreign corporations on the basis of isolated business transactions within state. 20 ALR3d 1201.

      1. An appeal from a judgment enforcing a foreign judgment may not collaterally attack the obligation underlying the foreign judgment, since that judgment replaces and extinguishes the underlying obligation. The Court of Appeals may only consider whether the foreign judgment was entered by a court of competent jurisdiction.
    2. The trial court’s finding of fact that Miller had transacted business in Wyoming was not clearly erroneous, since it was stipulated by the parties that Miller was present and had signed promissory notes in Wyoming. The trial court’s determination that the Wyoming court had jurisdiction over Miller under Wyoming’s long-arm statute was therefore proper. Entry of the default judgment precludes Miller from asserting that he signed the note only in his representative capacity, since entry of the Wyoming default judgment is equivalent to an admission by Miller of plaintiffs’ well pleaded averment that Miller signed the note personally and/or as an agent of Carl Grebe.
    3. The power of the Wyoming court to enter a binding judgment against Miller under its long-arm statute, which provides limited personal jurisdiction over Miller, is limited to entry of a judgment on claims arising out of the act or acts creating the jurisdictional relationship between Miller and Wyoming. Since plaintiffs in the complaint filed in the State of Wyoming district court averred no acts by Miller in Wyoming other than his signing of the $7,698.06 promissory note, Miller’s liability under the Wyoming judgment should be limited to his liability on that note. Accordingly, the trial court’s judgment enforcing the Wyoming judgment must be amended to limit the judgment against Miller to $7,698.06.
    Affirmed in part; reversed in part.
    1. Appeal and Error — Judgment — Underlying Obligations — Collateral Attack — Court of Competent Jurisdiction.
    An appeal from a judgment enforcing a foreign judgment may not collaterally áttack the obligation underlying the foreign judgment, since that judgment has replaced and extinguished the underlying obligation; thus, the Court of Appeals may only consider whether the foreign judgment was entered by a court of competent jurisdiction. ,
    2. Appeal and Error — Findings of Fact — Jurisdiction Over Nonresidents — Transaction of Business — Court Rules.
    The finding by the trial court that an individual defendant was present and had transacted business in another state so as to provide a basis for jurisdiction over that individual by the courts of that other state is not erroneous where it was stipulated that the individual was present in and had signed promissory notes in the other state (GCR 1963, 517.1).
    3. Judgment — Default Judgment — Admission.
    The entry of a default judgment precludes a defendant from asserting that he signed a note only in his representative capacity where plaintiffs complaint averred that the defendant signed the note personally, since entry of the default judgment is equivalent to an admission by the defaulting party to all well pleaded matters.
    4. Action — Jurisdiction Over Nonresidents — Activities Within State.
    Jurisdiction over a defendant is well founded where it can reasonably be said that said defendant purposefully availed himself of the privilege of conducting activities within the state asserting jurisdiction, since the defendant thereby invoked the benefit and protection of the laws of that state.
    5. Courts — Jurisdiction Over Nonresidents — Long-Arm Statutes — Limitations on Jurisdiction.
    The power to enter a binding personal judgment against a nonresident defendant pursuant to the limited personal jurisdiction under a long-arm statute is limited to entry of a judgment on claims arising out of the act or acts creating the jurisdictional relationship between the nonresident defendant and the state asserting jurisdiction.
    6. Judgment — Enforcement of a Foreign Judgment — Promissory Notes — Limited Personal Jurisdiction — Jurisdiction Over Nonresidents.
    A judgment in a Michigan court enforcing a default judgment secured in the courts of a sister state, where the judgment in the sister state included amounts due on a promissory note other than the promissory note which created limited personal jurisdiction over the defendant in that state, is limited to the amount due on the promissory note creating limited personal jurisdiction, the sister state’s court being without competent jurisdiction to render judgment against the defendant on the promissory note not executed by him in that state.

      Sinclair & Clulo, for plaintiffs.

      Isackson and Neering, P.C. (by Arthur J. Spec-tor), for defendant Miller.
    Before: Danhof, C.J., and N. J. Kaufman and D. C. Riley, JJ.
   N. J. Kaufman, J.

This dispute arose out of a drilling contract executed between two Wyoming corporations, plaintiff Wulf Oil and defendant Grebe Drilling Company. The contract was executed in and was to be carried out in Wyoming. Initially, plaintiffs filed a complaint in a Wyoming district court alleging three causes of action against Grebe Drilling, Carl Grebe, and Winston Miller. Both Carl Grebe, the president of Grebe Drilling, and Winston Miller, an attorney for Carl Grebe and Grebe Drilling, are Michigan residents. The first cause involved a breach of the Wyoming drilling contract, the second alleged that defendants charged debts to plaintiffs without plaintiffs’ consent, the third stated that Grebe Drilling executed a $25,862.30 note to plaintiff Wulf Oil and that Carl Grebe, by and through his agent Winston Miller, executed a . note to plaintiff Wulf Oil for $7,698.06. This latter cause also alleged that Winston Miller was in Wyoming when he signed the $7,698.06 note personally and/or as agent for Carl Grebe.

The Wyoming district court entered a default judgment against the "Defendants” in the amount of $70,000 plus interest and costs. Plaintiffs filed a complaint to enforce this judgment in Midland County Circuit Court. The defendants were again defaulted, due to their failure to answer or otherwise plead. Thereafter, defendants moved to set aside the default judgment. The trial court denied the motion for failure to show good cause and entered a judgment for $70,000 against defendants "jointly and individually”.

Defendants Carl Grebe and Winston Miller appealed from that determination. This Court granted plaintiffs’ motion to affirm as to Carl Grebe but denied the motion to affirm as to Winston Miller. On April 24, 1978, this Court released an unpublished per curiam opinion remanding this cause to the Midland County Circuit Court for a redetermination of defendant Miller’s motion to set aside the default judgment. The opinion required specific findings of fact on the question of Wyoming’s jurisdiction over the person of Winston Miller under its long-arm statute.

On remand, the trial court again denied defendant Miller’s motion to set aside the default on the ground that the Wyoming district court had jurisdiction over his person under the long-arm statute, since defendant Miller had been present in Wyoming and had transacted business in that state. From this order, defendant Miller appeals as of right.

Defendant Miller challenges the trial court’s jurisdictional ruling on two fronts. First, he contends that the trial court erred in holding that the Wyoming district court had jurisdiction under its long-arm statute. Then, he asserts that, even if Wyoming jurisdiction can be predicated upon his business transactions within that state, his only transaction was the execution of the $7,698.06 promissory note. Thus, the default judgment should be limited to that amount.

Initially, we note that, because this case involves a foreign judgment, this Court may only consider defendant’s claim that the Wyoming judgment was entered by a court without competent jurisdiction. We cannot consider collateral attacks against the obligation underlying the judgment, since the judgment has replaced and extinguished this obligation, Northern Ohio Bank v Ket Associates, Inc, 74 Mich App 286, 289-290; 253 NW2d 734 (1977). See also MCL 691.1151 et seq.; MSA 27.955(1) et seq.

The Wyoming long-arm statute, Wyo Stat § 5-4.2, sets forth a basis for jurisdiction over the defendant. It provides in pertinent part:

"§ 5-4.2 (a) In addition to all other bases of jurisdiction otherwise authorized or provided by law, any court of this state may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a claim for relief arising from the person’s
"(i) transacting any business in this state”.

Upon remand, the parties stipulated that defendant Miller is the attorney for the defendant corporation and defendant Grebe, and that "the promissory notes were signed by all parties in the State of Wyoming”. Based upon this stipulation, the trial court found that defendant Miller was present and transacted business in the State of Wyoming. Therefore, the court held Wyoming had jurisdiction over the defendant.

We do not regard this finding as clearly erroneous under GCR 1963, 517.1. The stipulation demanded just such a finding. Further, we hold that the default judgments entered against the defendant preclude him from asserting that he signed the note solely in a representative capacity, since the entry of a default judgment is equivalent to an admission by the defaulting party to all of the matters well pleaded, and one of the averments of plaintiffs initial complaint was that defendant Miller signed the note personally. See Sahn v Brisson, 43 Mich App 666, 670-671; 204 NW2d 692 (1972). Wyoming jurisdiction was well founded against defendant Miller. It can reasonably be said that he purposefully availed himself of the privilege of conducting activities within the State of Wyoming, thus invoking the benefit and protection of its laws, Hanson v Denckla, 357 US 235, 253; 78 S Ct 1228, 1240; 2 L Ed 2d 1283, 1298 (1958).

While we are not wont to disturb the jurisdictional finding herein, we are inclined to limit it. It appears the defendant’s only contact with Wyoming was his execution of a promissory note there for $7,698.06. Defendant admitted as much in his stipulation of facts on remand. This constituted transaction of business within the state and conferred limited personal jurisdiction over the defendant under the Wyoming long-arm statute. Limited personal jurisdiction is the power to enter a binding personal judgment against the defendant, limited, however, to claims arising out of the act or acts creating the jurisdictional relationship between the defendant and the state. Sifers v Horen, 385 Mich 195; 188 NW2d 623 (1971), MCL 600.705; MSA 27A.705, 1 Honigman and Hawkins, Michigan Court Rules Annotated (2d ed), p 125.

The Wyoming long-arm statute should be interpreted similarly. Jurisdiction over the defendant in Wyoming should have been limited to claims arising out of defendant’s transaction within that state. Therefore, we hold that the default judgments entered against defendant Miller are only valid up to the amount of the promissory note stipulated by the parties to have been executed by Miller in Wyoming, i.e., $7,698.06.

At this juncture, we note that the facts averred in the complaint filed in the State of Wyoming differ from the stipulated facts filed in Michigan, in that the latter states that defendant signed notes in the State of Wyoming whereas, the complaint filed in the State of Wyoming averred in paragraph two of the third cause of action: "That the Defendant, Grebe Drilling Company, has executed to the benefit of Wulf Oil Corporation a 30-day note in the amount of $25,862.30”. Furthermore, an examination of the two notes both signed December 11, 1974, indicates that defendant Miller’s name appears on the note for $7,698.06 and not on the note signed the same date at the same place for $25,862.30. In view of the foregoing, we hold defendant Miller liable only on the $7,698.06 note.

We decline to affirm the judgment in toto and hold defendant Miller upon a note which he did not execute. To do so would be to improperly bootstrap a claim onto the limited jurisdiction Wyoming acquired over defendant Miller. The Supreme Court of Colorado was called upon to consider a very similar situation in Tucker v Vista Financial Corp, 560 P2d 453 (Colo 1977). In that case, a California judgment was sought to be enforced in Colorado. The Colorado Supreme Court looked behind the judgment for jurisdictional purposes and found that it was based on two notes, one of which (the Crocker note) was executed in California by the party sought to be charged, the other (the Vista note) was not. There was no contact with California regarding the Vista note and thus no jurisdictional base for its enforcement. The Colorado Supreme Court recognized this and stated:

"To allow jurisdiction as to the Vista note to be based on the unrelated contact of the Crocker note would be to open to abuses of the judicial process. Small claims for which jurisdiction does exist could be used to 'bootstrap’ larger claims for which no link can be established. This 'tacking on’ of claims cannot be allowed to erode the power of the enforcing state court to examine the jurisdictional bases of the judgment.” Tucker, supra, 456.

Affirmed in part; reversed in part. The case is remanded for entry of a judgment of $7,698.06 against the defendant Miller. Costs to appellee, appellant having allowed the plaintiffs to take two default judgments.


author: Bashara, J. Beasley, J.

text:
    PEOPLE v TERRIEN
    Docket No. 78-5394.
    Submitted October 4, 1979, at Marquette.
    Decided November 20, 1979.
    Leave to appeal applied for.
    Paul J. Terrien was charged with driving while under the influence of intoxicating liquor. He was convicted by a jury of the lesser included offense of impaired driving, Delta District Court, Dean J. Shipman, J. On appeal to Delta Circuit Court, the conviction was affirmed, Clair J. Hoehn, J. Defendant appeals by leave granted. On appeal, defendant claims that he had a statutory right which he exercised to refuse to take a Breathalyzer test at the time of his arrest and claims that he also had a right to have no mention made of the Breathalyzer test. According to defendant, an instruction before the trial began which tells the jurors that the case will not involve any testimony as it relates to a Breathalyzer test nor the results of the test and to draw no inferences either favorable or unfavorable to either party to the trial for lack of such testimony was fundamentally unfair to him and grounds for reversal of his conviction. Held:

    The court’s instruction was neither unfair nor reversible error. It was an impartial statement cautioning the jury to ignore the matter of Breathalyzer tests and it cannot be presumed, without some further factual basis, that the jury disregarded the instruction.
    Affirmed.
    Beasley, J., dissents. He would hold that the court’s instruction does not serve the purpose for which it was given and that evidence of a defendant’s refusal to submit to a Breathalyzer test is inadmissible because it calls the jury’s attention to the possibility that a chemical test may have been administered, that defendant failed the test and, thus, was intoxicated. This type of instruction, given over objection, is fundamentally unfair to the defendant and constitutes reversible error. He would reverse and remand for a new trial.
    References for Points in Headnotes
    [1, 2] 29 Am Jur 2d, Evidence § 830.
    75 Am Jur 2d, Trial § 746.

      Opinion of the Court
    1. Criminal Law — Instructions to Jury — Evidence — Drunk Driving — Breathalyzer Test — Inferences.
    A jury instruction in a prosecution for driving under the influence of alcohol which tells the jurors that the case will not involve any testimony as it relates to a Breathalyzer test nor the results of the test and to draw no inferences either favorable or unfavorable to either party to the trial for lack of such testimony was neither unfair nor reversible error; the instruction was an impartial statement cautioning the jury to ignore the matter of Breathalyzer tests and it cannot be presumed, without some further factual basis, that the jury disregarded the instruction.
    Dissent by Beasley, J.
    2. Criminal Law — Instructions to Jury — Evidence — Drunk Driving — Breathalyzer Test — Inferences.

      A jury instruction in a prosecution for driving under the inñuence of alcohol which tells the jurors that the case will not involve any testimony as it relates to a Breathalyzer test nor the results of the test and to draw no inferences either favorable or unfavorable to either party to the trial for lack of such testimony does not serve the purpose for which it was given because it calls the jury’s attention to the possibility that a chemical test may have been administered and if a juror reaches the conclusion that a chemical test has been given then it would seem to follow that the juror would conclude that a defendant failed the test and, thus, was intoxicated; this type of instruction, given over objection, is fundamentally unfair to the defendant and constitutes reversible error.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Stephen L. Pence, Prosecuting Attorney (Prosecuting Attorneys Appellate Service, Thomas C. Nelson, of counsel), for the people.

      Davis & Olsen, for defendant on appeal.
    Before: Allen, P.J., and Bashara and Beasley, JJ.
   Bashara, J.

The majority adopts the factual findings of the dissenting opinion. However, it appears to us that the instruction in question was neither unfair nor reversible error.

We view the instruction as an impartial statement cautioning the jury to ignore the matter of Breathalyzer tests. Without some further factual basis, we do not presume that the jury disregarded the instruction. See People v Bernard Smith, 81 Mich App 561, 566; 266 NW2d 40 (1978), rev’d on other grounds, 406 Mich 926; 277 NW2d 506 (1979).

Affirmed.

Allen, P.J., concurred.

Beasley, J.

(dissenting). Defendant, Paul Joseph Terrien, was charged with driving while under the influence of intoxicating liquor, in violation of MCL 257.625; MSA 9.2325.

Defendant was convicted by a jury in district court of the lesser included offense of impaired driving, in violation of MCL 257.625b; MSA 9.2325(2).

On appeal to the circuit court, defendant’s conviction was affirmed. He appeals to this Court by leave granted, raising one issue.

Before trial began, and over defendant’s objection, the trial judge instructed the jury as follows:

"In today’s trial, we are involved with a violation of the criminal statutes of the State of Michigan. This defendant has been charged with the crime of driving under the influence of intoxicating liquors. This is commonly referred to as drunk driving. The trial of this case will not involve any testimony as it relates to the breathalyzer test nor the results of a breathalyzer test. You may draw no inferences, either favorable or unfavorable, to either party to this trial for the lack of such testimony.”

Defendant says that he had a statutory right which he exercised to refuse to take a Breathalyzer test at the time of his arrest. He claims that he also had a right to have no mention made of the Breathalyzer test. He asserts the effect on the jury of the trial judge’s instruction was fundamentally unfair to him.

In People v Hayes, the trial court admitted in evidence, over defendant’s objection, testimony that defendant refused to take a Breathalyzer test after it had been offered. The testimony indicated the police officer had explained to defendant that the Breathalyzer test was a chemical test conducted to determine the percentage of alcohol in his blood and that if he did not take the test his license would be revoked. In Hayes, this Court said that it was unnecessary to decide whether admitting this testimony constituted an unconstitutional violation of defendant’s Fifth Amendment right to be free from self-incrimination because fundamental fairness and evidentiary considerations were sufficient to decide the issue. The Court interpreted the statute to give a person charged with drunk driving a choice between taking a chemical test for presence of alcohol in the blood, which could create a strong presumption of guilt, or refusing to take the test and suffering revocation of his driver’s license. The Hayes Court said that to permit a jury to hear of the refusal to take the test was fundamentally unfair to defendant and deprived a defendant of the choice afforded in the statute. In addition, the probative value of such evidence was said to be too low in comparison with its prejudicial effect to be admissible.

This case may readily be distinguished from Hayes. Here, the trial court, apparently assuming jurors know and will speculate about the chemical tests for alcoholic intoxication, sought to allay that concern by telling them there would be no evidence regarding the same and that they should draw no inferences concerning it.

I would doubt that such an instruction would serve the purpose for which it was given. On the contrary, the instruction given calls the jury’s attention to the possibility that a chemical test may have been administered. If a juror reaches that conclusion that a chemical test was given, then it would seem to follow that the juror would conclude that a defendant failed the test and, thus, was intoxicated. As indicated in Hayes, such a conclusion is neither necessarily correct nor fundamentally fair to a defendant.

Normally, we do not presume a jury disregarded a judge’s instruction. But, I do not deem that to be the issue in this case. The apparent reason for the trial judge’s instruction is the assumption that jurors are more or less familiar with the use of chemical tests to ascertain alcohol content in the blood and that there is a statutory presumption of impairment to drive when specified alcohol content in the blood is reached.

I note that there is not any reliable, readily available information on the extent and depth of a juror’s knowledge of the changing laws relating to chemical tests for alcoholic content in the blood and the effect of implied consent on driver’s licenses. But, if we assume the trial court’s apparent basis for the instruction was, in fact, correct, nevertheless, the instruction in question seems unfair to defendant.

Thus, for these reasons, I would find that the instruction here given by the trial judge, over the objection of defense counsel, was fundamentally unfair to defendant and constituted reversible error.

I would reverse and remand for a new trial.

       The language in the first sentence that "In today’s trial, we are involved with a violation of the criminal statutes of the State of Michigan”, is unfortunate and incorrect. The trial is held to decide whether a criminal statute is violated, and that decision is for the jury.

       64 Mich App 203; 235 NW2d 182 (1975), lv den 397 Mich 816 (1976).

       MCL 257.625a; MSA 9.2325(1).

       It seems unlikely that a knowledgeable juror would conclude that a defendant would be legally prevented from offering evidence that he passed a chemical test for alcoholic intoxication.

        People v Bernard Smith, 81 Mich App 561; 266 NW2d 40 (1978), rev’d on other grounds, 406 Mich 926; 277 NW2d 506 (1979).


author: Allen, P.J.

text:
    PEOPLE v BARRETT PEOPLE v CARR
    Docket Nos. 78-5510, 78-5511, 78-5512.
    Submitted October 11, 1979, at Detroit.
    Decided November 20, 1979.
    Defendant William Barrett was convicted, on his plea of guilty, of two counts of armed robbery, two counts of felony-firearm and assault with intent to commit armed robbery in Recorder’s Court of Detroit, Joseph A. Gillis, J. The charges arose from three separate incidents. His sentence included two years on the first felony-firearm conviction and five years on the second, despite the understanding of the court, prosecutor and defendant that he would be sentenced to two years on each to be served concurrently. When this was pointed out to the court, defendant was given an opportunity to withdraw his plea to the second felony-firearm and stand trial. After consulting his attorney, defendant elected not to withdraw his plea. Defendant Leroy Carr was convicted, on his plea of guilty, of armed robbery, assault with intent to commit armed robbery and felony-firearm, involving two of the same incidents as in the Barrett case. The cases against both defendants were consolidated for plea taking and sentencing. Both defendants appeal claiming as error the sentencing judge’s mistaken belief that the defendants’ assault with intent to commit armed robbery convictions were armed robbery convictions. Barrett also claims error in sentencing him to five years on the second felony-firearm conviction. Held:

    1. While the court erred in mistakenly believing it was sentencing defendants for armed robbery rather than assault with intent to commit armed robbery, the error was not prejudicial because the sentence of each defendant was exactly as bargained for.
    2. Multiple convictions arising out of separate incidents pled to on the same day may serve as the basis for subsequent-offender convictions under the felony-firearm statute. The court did not err in sentencing defendant Barrett to five years on the second felony-firearm conviction.

      References for Points in Headnotes
    [1] 21 Am Jur 2d, Criminal Law § 496.
    [2] 21 Am Jur 2d, Criminal Law §§ 183, 186.

      Affirmed with an order correcting the sentence of each defendant to reflect a sentence for one count of assault with intent to commit armed robbery.
    1. Criminal Law — Sentencing — Mistake as to Crime Convicted Of.
    A trial court did not err prejudicially in sentencing a defendant in accordance with the terms of a plea bargain whereby defendant pled guilty to assault with intent to commit armed robbery even though the sentencing judge was under the mistaken belief that he was sentencing defendant for armed robbery.
    2. Criminal Law — Felony-Firearm — Multiple Convictions — Statutes.
    Multiple convictions arising out of separate incidents pled to on the same day may serve as the basis for subsequent-offender convictions under the felony-firearm statute (MCL 750.227b; MSA 28.424[2]).

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cabalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, and Paul G. Bruno, Assistant Prosecuting Attorney, for the people.

      Jack J. Kraizman, for defendants on appeal.
    Before: Allen, P.J., and Bashara and Beasley, JJ.
   Allen, P.J.

This appeal concerns the validity of guilty pleas and sentences related to armed robberies of three different bars on three different dates by two defendants. Defendant Barrett was involved in all three robberies. Defendant Carr was involved in two and appeals only in one. All pleas were taken November 8, 1978, and all sentences were imposed November 20, 1978. Because the appeals raise different issues, one being an issue of first impression, we consider them separately.

Appeal of Defendant Carr

Defendant Carr was charged with armed robbery of the QT Bar at 9198 Livernois, July 20, 1978 (our file #78-5512; lower court file #06790), and with armed robbery of Mando’s Bar at 4400 W. Fort Street, September 27, 1978 (our file #78-5511; lower court file 06789). Pursuant to a plea bargain, he pled guilty to armed robbery of the QT Bar and to assault with intent to commit armed robbery of Mando’s Bar and possession of a firearm. In case number 06789, he was sentenced on the underlying felony charge to 6 to 20 years in prison, said sentence to run concurrently with case number 06790. On the felony-firearm charge Carr was sentenced to 2 years. Appeal was taken by defendant Carr only in file 06789 (the Mando Bar robbery).

On appeal defendant Carr claims (1) an insufficient factual basis for the plea to the underlying offense, and (2) unconstitutionality on double jeopardy grounds of the felony-firearm statute. The claim of double jeopardy was disposed adversely to defendant in Wayne County Prosecutor v Recorder’s Court Judge, 406 Mich 374; 280 NW2d 793 (1979).

The claim of insufficiency of the factual basis is refuted by the plain language at the plea taking. The transcript reads:

"THE COURT: Mr. Carr, file 89, we are talking about the W. Fort, which is Mando’s Bar at 4400 W. Fort, about 10:30 at night. What happened there, Mr. Carr?
"DEFENDANT CARR: I went in and, you know, pulled a firearm, jumped over the bar, took the money and fled.
"THE COURT: The other bar is file number 6790 and we are talking about the QT Bar at 9198 Livernois. All three of you were identified and involved in that one. What happened there?
"DEFENDANT CARR: Just about the same thing. I went in, announced a holdup, jumped over the bar, got the money out of the cash register and left.
"THE COURT: Yes, and at that one Mr. Barrett left a glass with his fingerprints on it.
"DEFENDANT BARRETT: Right.
"THE COURT: In any event has the Court complied to 785.7(1), (2), (3)?
"MR. ROBINER: Satisfied, your Honor.
"MR. ARDUIN: Satisfied, your Honor.
"THE COURT: You had a firearm in each one of these stickups; is that correct?
"DEFENDANT BARRETT: Yes.
"DEFENDANT CARR: Yes.”

At the time the above dialogue took place the trial court was under the impression the plea was to armed robbery rather than to assault with intent to rob being armed. However, the facts as recited are sufficient to support either offense. People v Patskan, 387 Mich 701, 714; 199 NW2d 458 (1972). Moments later the trial court realized its mistake, accepted the plea as "a plea of assault with intent to rob being armed in 6789” and further commented that the information should be corrected accordingly.

Defendant argues that while the above is all true, the sentence is still invalid because, upon reconvening for sentencing November 20, 1979, the trial court, apparently forgetting its earlier correction, proceeded to sentence defendant Carr on the assumption he pled guilty to two counts of armed robbery and one count of possession of a firearm. Defendant has a point. The court was confused, but despite that confusion we find no prejudice since sentence was imposed exactly as bargained for and as promised at the plea taking. Unlike the situation in Barrett’s plea, infra, only one count of possession of a firearm was involved. Consequently, the problem of a five-year sentence for firearm possession is not involved. While we could remand to the trial court to correct the sentencing so as to clearly show the sentence imposed in file 06789 was for assault with intent to rob being armed, we find the transcript, when read in toto, so clear that we elect to avoid remand by ordering correction ourselves. As ordered, the sentence is no more and no less than the sentence for which defendant bargained.

Appeal of Defendant Barrett

Defendant Barrett was involved in all three cases. Pursuant to a plea bargain he pled guilty to armed robbery of the QT Bar (#5512), guilty to armed robbery and felony firearm at Chuck’s Bar (#5510), and guilty to assault with intent to commit armed robbery and felony-firearm at Mando’s Bar (#5511).

He appeals all three cases claiming error, inter alia, on the same grounds as asserted by defendant Carr. For the same reasons set forth by us in defendant Carr’s appeal we find no error.- As with Carr, we order the record and file corrected in trial court file 06789 (our file 5510) to show that the sentence imposed on defendant Barrett was for assault with intent to rob being armed and not for armed robbery.

However, an additional ground for reversal is asserted. The question raised is of first impression. Unlike Carr, defendant Barrett was charged with two counts of possession of a firearm, viz.: one during the robbery at Chuck’s Bar and the other at the assault with intent to rob Mando’s Bar. At the plea-taking hearing he pled guilty to each with the understanding that he would be sentenced to two years in prison on each felony-firearm charge, said sentences to run concurrently. But at sentencing on November 20, the court sentenced defendant Barrett to two years for the offense September 26, at Chuck’s Bar, and five years (rather than two) for the offense September 27, at Mando’s Bar. When reminded by Barrett that the court had promised two years to run concurrently on each felony-firearm charge, the court explained:

"THE COURT: On the five year, you can withdraw your plea, if you wish, if you were misled into it, and you can go to trial; but I want to point out that—
"DEFENDANT: Where is the trial going to be held at, in this courtroom?
"THE COURT: Yes. But I overlooked the fact at the time of taking the plea—and your lawyer overlooked it, and even the prosecutor apparently overlooked it—that the second gun conviction carries a mandatory five year minimum. All three people overlooked that.
"I have no discretion under the law. The legislature is putting in a lot of things 'the Judge shall,’ and they used to say 'the Judge may.’ When it says shall, that means I have no discretion, I’ve got to do it. When they say I may do it, then I don’t have to do it. I can do it or not do it as I feel like.
"On the second gun conviction they say I shall give a five year sentence.”

Following consultation with his attorney, defendant Barrett elected to reject the court’s offer to withdraw his plea of guilty in case number 06789.

The felony-firearm statute, MCL 750.227b; MSA 28.424(2) provides in pertinent part:

"A person who carries or has in his possession a firearm at the time he commits or attempts to commit a felony * * * is guilty of a felony, and shall be imprisoned for 2 years. Upon a second conviction under this section, the person shall be imprisoned for 5 years. Upon a third or subsequent conviction under this section, the person shall be imprisoned for 10 years.”

Counsel argues that since both pleas were taken at the same time, the conviction in case number 06787 (Chuck’s Bar) was simultaneous with the conviction in the case appealed (06789, Mando’s Bar), and, consequently, even though the offer to withdraw the plea was declined, there was no "second conviction”. The question raised is whether multiple convictions arising out of separate incidents pled to on the same day may serve as the basis for subsequent-offender convictions under Michigan’s felony-firearm statute.

Under Michigan law, it has been held that two or more convictions on different counts under the same indictment or information cannot be cumulated so as to count as two or more previous convictions within the meaning of Michigan’s habitual offender act, MCL 769.10 et seq.; MSA 28.1082, et seq. People v Podsiad, 295 Mich 541; 295 NW 257 (1940). Similarly, the great majority of jurisdictions have extended the application of the above rule to the same day or at the same term of court. See Anno: Chronological or procedural sequence of former convictions as affecting enhancement of penalty for subsequent offense under habitual criminal statutes, 24 ALR2d 1247. The question arises whether the rule against cumulating simultaneously received convictions in the context of the habitual offender act should apply in the context of Michigan’s felony-firearm statute. MCL 750.227(b); MSA 28.424(2). We answer that question in the negative.

While both statutes are similar in that each is imbued with a general deterrent force common to all criminal statutes, they are strikingly different in language and purpose. The habitual offender act specifically excepts from its coverage the first-time offender whereas the felony-firearm statute applies to all offenders. The habitual offender statute was intended to afford a first offender an opportunity to reform. Thus, a time gap between convictions becomes important. By contrast, the felony-firearm statute is directed at punishing the use of firearms during unlawful acts and, as such, is not concerned with the time at which convictions are received. Our Supreme Court has found the statutes quite different.

"This language is markedly different from the language used by the Legislature in those statutes which are merely sentence enhancement statutes. For example, the habitual offender statute regarding second offenders states: [quoting statute]. There is no language in this statute indicating that the defendant shall be deemed guilty of a separate felony or that a consecutive sentence is to be imposed. The one sentence originally imposed for the felony which gives rise to the habitual offender proceedings is simply increased.” 406 Mich 374, 389-390.

Finally, we note that the statutes differ in that the habitual offender law gives wide discretion to the trial court whereas the felony-firearm act mandates compliance in unambiguous terms.

Because we find the statutes so different in language, coverage and purpose, we conclude that the rule against cumulation of multiple convictions received on the same day does not apply to the felony-firearm statute. Accordingly, the trial court’s imposition of the five-year additional sentence for the second (Mando Bar offense) felony-firearm conviction is sustained. Our decision in this respect is strictly limited to the facts in the instant case.

Affirmed.

       (1) File 5512—Robbery July 20, 1978, of QT Bar, 9198 Livernois. Both defendants were charged and pled guilty to armed robbery. Felony-firearm was not charged.
      (2) File 5510—Robbery September 26, 1978, of Chuck’s Bar, 5353 Livernois. Only defendant Barrett was charged. He pled guilty to armed robbery and to felony-firearm.
      (3) File 5511—Robbery September 27, 1978, of Mando’s Bar, 4400 W. Fort St. Both defendants were charged with armed robbery and possession of a firearm. Both were bound over and pleas given to assault with intent to commit armed robbery and to felony-firearm.

       "THE COURT: File 78-06789 and 78-06790, Leroy Carr.
      Mr. Carr, you pled guilty to two counts of robbery armed and one count of possession of a firearm in the commission of a felony.
      As you are aware, there is a mandatory penitentiary sentence for both robbery armed and possession of a firearm.
      There was a sentence bargain of five to twenty years.”

       We note that since the felony-firearm statute distinguishes between "a second conviction under this section” and "a third or subsequent conviction under this section” (emphasis added) the Legislature contemplated that two simultaneous convictions in violation of the felony-firearm statute were sufficient to impose a 5-year mandatory sentence. Likewise, three simultaneous convictions or a subsequent conviction /he., following in time, a previous conviction, 40 Words and Phrases, subsequent, pp 724-725], results in the imposition of a ten-year sentence. This distinction in the statutory language reinforces our position in the instant action by implying that the imposition of a five-year sentence occurs upon a second conviction regardless of the sequence, whereas, a ten-year sentence can only be imposed for a second felony-firearm conviction where that conviction follows or succeeds a former conviction for the same offense.

       Conceivably, there are situations where multiple convictions might be impermissible. For example, if in a single armed robbery where defendant uses a firearm, money were taken from A, B and C, and the defendant pleads guilty or is convicted on the same day to all offenses, it would be questionable whether a ten-year sentence could be imposed under the felony-firearm statute. MCL 750.227(b); MSA 28.424(2).


author: MacKenzie, J.

text:
    PEOPLE v PIPKIN
    Docket No. 44673.
    Submitted October 9, 1979, at Detroit.
    Decided November 20, 1979.
    Defendant, Charles R. Pipkin, was charged with a third violation of the statute prohibiting driving under the influence of intoxicating liquor (DUIL). Prior to trial, defendant moved the court to determine whether the jury would be instructed on the lesser included offense of driving while visibly impaired due to the consumption of alcohol (DWI). The charge brought against defendant required a bifurcated trial first to determine defendant’s guilt or innocence on the presently charged offense and then, if found guilty, to determine whether he has been convicted of the same offense twice before within ten years. The Monroe Circuit Court, James J. Kelly, J., determined that the Chamblis rule, which prohibits an instruction on a lesser included offense for which the maximum allowable incarceration period is one year or less in a case wherein the charged offense is punishable by incarceration for more than two years, applied and certified the question. Defendant appeals by leave granted. Held:

    .The Chamblis rule does not apply to the first part of the bifurcated trial on the charge of DUIL-third offense. In such a trial the court must instruct on DWI upon request.
    Reversed and remanded.
    Criminal Law — Instructions to Jury — Lesser Included Offenses — Driving Under the Influence — Driving While Impaired.
    The rule prohibiting an instruction on a lesser included offense for which the maximum allowable incarceration period is one year or less in a case wherein the charged offense is punishable by incarceration for more than two years is not applicable to the first phase of a bifurcated third-violation driving under the influence of intoxicating liquor trial and does not preclude a jury instruction on driving while visibly impaired.
    Reference for Points in Headnote
    75 Am Jur 2d, Trial § 876.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Michael W. Labeau, Prosecuting Attorney, and William Godfroy, Assistant Prosecuting Attorney, for the people.

      Thomas P. Russow, for defendant.
    Before: J. H. Gillis, P.J., and V. J. Brennan and Mackenzie, JJ.
   MacKenzie, J.

Defendant was charged with a third violation of the statute which prohibits driving under the influence of intoxicating liquor (DUIL), MCL 257.625; MSA 9.2325. Prior to trial, the defendant moved the court to determine whether the jury would be instructed on the lesser included offense of driving while one’s ability is visibly impaired due to the consumption of intoxicating liquor (DWI), MCL 257.625b; MSA 9.2325(2), during the first part of the bifurcated trial which is required under the charge brought against the defendant.

Pursuant to the prohibition contained in People v Chamblis, 395 Mich 408, 429; 236 NW2d 473 (1975), the lower court determined that an instruction as to the lesser included offense of DWI was not permitted.

On April 12, 1979, the lower court certified that the order embodying the foregoing determination involved a controlling question of law as to which there are substantial grounds for difference of opinion. GCR 1963, 806.3(l)(a)(ii). Defendant brings this appeal pursuant to leave granted.

The question presented for our consideration is whether the Chamblis rule, which prohibits an instruction on a lesser included offense for which the maximum allowable incarceration period is one year or less in any case wherein the charged offense is punishable by incarceration for more than two years, should be applied in the first phase of a bifurcated DUIL third-violation trial to preclude an instruction on DWI. We hold that it should not.

Pursuant to MCL 257.625; MSA 9.2325, driving while under the influence of intoxicating liquor is prohibited. The Legislature has enunciated a graduated punishment scheme for violations of this statute. A first conviction for DUIL carries a penalty of not more than 90 days imprisonment and/ or a fine of not less than $50 nor more than $100, together with costs of prosecution. Upon a second conviction for DUIL, the defendant is deemed guilty of a misdemeanor punishable by imprisonment for not more than one year and, in the discretion of the court, a fine of not more than $1,000. Upon a third or subsequent conviction within a period of ten years, the defendant is deemed guilty of a felony. MCL 257.625(c); MSA 9.2325(c). The felony carries a penalty of not less than one year nor more than five years imprisonment and/or a fine of not less than $500 nor more than $5,000. MCL 257.902; MSA 9.2602.

By statute and case law, DWI is a lesser included offense of DUIL. MCL 257.625b(a); MSA 9.2325(2)(a), People v Lambert, 395 Mich 296, 305; 235 NW2d 338 (1975). Multiple convictions for DWI similarly result in increased punishment. A first conviction for DWI is punishable by imprisonment for not more than 90 days and/or a fine of not more than $100, together with costs of prosecution. A second or subsequent conviction is punishable by imprisonment for not more than one year and/or a fine not to exceed $1,000. MCL 257.625b(b); MSA 9.2325(2)(b).

As can be seen, strict application of the Cham blis rule would prohibit an instruction on DWI in the present case. DUIL, third violation, the charged offense, is punishable by incarceration for more than two years. DWI is a lesser included offense, the punishment for which does not exceed one year. Such strict application, however, is not here appropriate.

In a DUIL third-violation jury trial, the defendant is entitled to a bifurcated proceeding. In the first phase of the trial, the jury is required to determine the defendant’s guilt or innocence with respect to the current DUIL offense. In order to ensure that the jury will not be prejudiced against the defendant, they are not permitted at this stage to know of the defendant’s prior convictions. If the defendant is convicted, the second stage of the trial is held to determine whether the defendant has been convicted of the same offense twice before within ten years. See People v Bosca, 25 Mich App 455; 181 NW2d 678 (1970).

Thus, as a practical matter, in the first stage of the bifurcated proceeding, the defendant is in effect charged not with DUIL third-violation, an offense punishable by greater than two years imprisonment, but rather with simply DUIL, an offense not punishable by greater than two years imprisonment. Accordingly, a necessary precondition to the application of the Chamblis rule, a charged offense for which the maximum allowable incarceration period is greater than two years, is not here present. The Chamblis rule is inapplicable. The trial court, in the first stage of a DUIL third-violation trial, must, upon the defendant’s request, instruct on DWI.

The remaining questions raised by the defendant have not yet been presented to the trial court. It is axiomatic that this Court will not pass upon questions not decided by the lower court.

The lower court is reversed. The case is remanded for a bifurcated trial pursuant to People v Bosca, supra. During the first stage of the trial, the lower court is directed to instruct on the lesser included offense of DWI.


author: Per Curiam.

text:
    PEOPLE v HUNT
    Docket No. 77-4138.
    Submitted October 4, 1979, at Detroit.
    Decided November 21, 1979.
    Leave to appeal applied for.
    James A. Hunt was convicted of attempted breaking and entering of an occupied dwelling with intent to commit a larceny therein and of possession of a firearm in the commission of a felony, Recorder’s Court of Detroit, Joseph E. Maher, J. Defendant appeals, alleging that the trial court erred by refusing defense counsel’s request to instruct the jury that the defendant could not be convicted of the felony-firearm offense if he were acquitted of the underlying felony. Held:

    A defendant cannot be convicted of felony-firearm unless he is also convicted of the underlying felony, and refusal to give the proper instruction when requested is error. In this case the error does not warrant reversal, however, because the jury convicted the defendant of both offenses.
    Affirmed.
    1. Criminal Law — Felony-Firearm — Underlying Felony — Statutes.
    A defendant cannot be convicted of possession of a firearm during the commission of a felony unless he is also convicted of the underlying felony (MCL 750.227b; MSA 28.424[2]).
    2. Trial — Instructions to Jury — Request for Instructions.
    It is error for a trial court to refuse to give a proper jury instruction when requested.
    3. Trial — Instructions to Jury — Coercive Instructions.
    An instruction to the jury may not be coercive.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward R. Wilson, Principal Attorney, Appeals, and Paul C. Louisell, Assistant Prosecuting Attorney, for the people.

      References for Points in Headnotes

       21 Am Jur 2d, Criminal Law § 183.

       75 Am Jur 2d, Trial §§ 588, 589.

       76 Am Jur 2d, Trial § 1055 et seq.

      Norman R. Robiner, for defendant on appeal.
    Before: T. M. Burns, P.J., and Bronson and R. M. Maher, JJ.
   Per Curiam.

The defendant was convicted by a jury of attempted breaking and entering of an occupied dwelling with intent to commit larceny therein, MCL 750.110; MSA 28.305, and possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). He was sentenced to a term of 3 to 5 years imprisonment on the attempted breaking and entering, and to a consecutive 2-year term on the felony firearm count. The defendant appeals as of right.

The sole issue raised on appeal involves the jury instructions on the felony firearm charge. The trial court refused the request by defense counsel to instruct the jury that if they acquit the defendant of the underlying felony count, they cannot convict the defendant of felony firearm.

This was erroneous because the language of the statute, MCL 750.227b; MSA 28.424(2), indicates that a defendant cannot be convicted of felony firearm unless he is also convicted of the underlying felony. A trial court’s refusal to give a requested proper instruction is erroneous. People v Hansma, 84 Mich App 138, 145; 269 NW2d 504 (1978).

However, this does not constitute reversible error. In the instant case, the jury convicted the defendant of both counts. The trial court’s refusal to give the requested charge was at most harmless error under these circumstances. See People v Robinson, 386 Mich 551, 563; 194 NW2d 709 (1972).

We recognize that there is no standard jury instruction on this matter, and address the issue because of the likelihood of its recurrence. A jury instruction must not be coercive, so as to avoid the problem encountered in People v Mitchell, 85 Mich App 757, 760; 272 NW2d 601 (1978) (dissent by N. J. Kaufman, P.J.).

With respect to verdicts on the underlying felony and felony firearm, we suggest the following instruction:

"You may convict or acquit the defendant on Count I — the underlying felony.
"You may convict or acquit the defendant on Count II — felony firearm.
"You may convict the defendant of Count I and acquit him of Count II if you find that defendant did not use a gun in perpetrating the offense charged in Count I.
"However, you may not convict the defendant of Count II and acquit him of Count I. A defendant is not guilty of felony firearm unless he is also guilty of the underlying felony.”

Affirmed.

       Judge Kaufman’s dissent in People v Mitchell, supra, 760, notes that the trial court instructed the jury that "before however, you can find defendant guilty under this count, count two, you must first find him guilty of count one”. This was deemed impermissively coercive. However, the trial court in Mitchell corrected the instruction before the jury retired to deliberate, rendering the instruction harmless error.

       If the trial judge charges the jury on lesser included offenses, the language should reflect that fact as follows:
      "You may not convict the defendant of Count II and acquit him of Count I, the charged felony, or of all of the lesser included offenses on which you have been charged. A defendant is not guilty of felony firearm unless he is guilty of some underlying felony.”