People v. Covington

346 N.W.2d 903, 132 Mich. App. 79

• Court: Michigan Court of Appeals
• Decided: February 7, 1984
• Docket: Docket 63206
• Status: Published

Opinions

Per Curiam.

Defendant was convicted following a bench trial of attempting to obtain money over $100 by false pretenses, MCL 750.92, 750.218; MSA 28.287, 28.415. He was sentenced to one year of probation, nonreporting, and appeals as of right.

Defendant, an attorney, was assigned to represent an indigent defendant, Tyrone Lake, who was charged with four offenses. A pretrial negotiation was held on December 17, 1976, in. which Lake did not participate. The assistant prosecuting attorney told defendant that if Lake would plead guilty to two of the charged offenses 'within 30 days the other two would be dismissed. According to the testimony of Lake, defendant then approached Lake, who had been waiting in the hallway, and asked him how much he would pay to get the sentence on one of the charges reduced from life to a year’s probation. Lake replied, "Anything.” Defendant then allegedly said: "If I had two thousand dollars, then I could get that reduced down, the charges knocked off, the life sentence knocked off and reduced down to a year’s probation.” Shortly after this conversation, Lake went to the police. A search warrant was obtained authorizing a wiretap of defendant’s office and home phones. Another search warrant was obtained authorizing participant monitoring. The police then taped a meeting between Lake and defendant on December 29, 1976. At that meeting, Lake gave defendant $800 supplied by the police. At one point defendant said: "I’m going to call and ask my man if we can drop those charges, get those charges, the two I told you about.” Shortly thereafter, defendant was arrested.

Defendant was originally charged with one count of obtaining money by false pretenses, MCL 750.218; MSA 28.415, and, after, a preliminary examination, he was bound over for trial on that charge. In response to defendant’s motion to quash the information, the trial court ordered that the information be amended to charge attempt to obtain money over $100 by false pretenses. Defendant then moved for rehearing on this motion to quash. The trial court granted the motion. The people then appealed to this Court. In an unpublished per curiam opinion, Docket No. 77-3988, decided October 17, 1979, this Court reversed and reinstated the information charging attempt. Defendant was then tried before the court sitting without a jury, resulting in his conviction.

Defendant contends that the amended information was defective because it did not charge a crime. The amended information stated that defendant:

"Did attempt to obtain money of the value of over $100 designedly and with intent to defraud or cheat the above-named complainant by a false pretense, to wit: the representation that the claim or representation that he could procure the dismissal of certain criminal charges and obtain a sentence of probation on other criminal charges, then pending against complainant in Recorder’s Court Case No. 76-09788, if complainant would pay a substantial sum of money, contrary to sec. 750.218, MCL.”

Initially, we address the people’s argument that the "law of the case” doctrine bars our review of the above claim. In People v Stinson, 113 Mich App 719, 730; 318 NW2d 513 (1982), lv den 417 Mich 957 (1983), this Court said:

"Where a prior ruling of this Court concerns the same question of law in the same case, the doctrine of the law of the case applies and the prior ruling is controlling.”

The people maintain that our prior ruling reversing the trial court’s order quashing the information controls our decision on defendant’s challenge to the information on this appeal. We disagree. The question involved in the earlier appeal was whether the examining magistrate abused his discretion in binding the defendant over on the charge of obtaining money over $100 by false pretenses. This Court concluded that there was enough evidence to support the bind-over. The issue in this appeal, however, does not involve the bind-over. Rather, it challenges the information on its face without reference to the evidence received at the preliminary examination. As the Supreme Court said in People v Webb, 127 Mich 29, 31; 86 NW 406 (1901):

"The sufficiency of an information does not depend upon the proofs. It either is or is not, upon its face, a good information”.

Inasmuch as the question of law resolved in the first appeal is not now before us, the law of the case doctrine does not apply.

Defendant desires that we reverse his conviction because the information failed to set forth facts which would, if proven, establish the falsity of the representation. We do not find that this omission rendered the information fatally defective or that reversal of defendant’s conviction is warranted.

A defect in an information may be amendable upon proper and timely objection by a defendant. MCL 767.76; MSA 28.1016; People v Fuzi, 46 Mich App 204, 209-210; 208 NW2d 47 (1973). The controlling question is whether such an amendment would be prejudicial to the accused. Fuzi, supra. A defendant is not prejudiced by an amendment to the information to cure a defect in the offense charged where the original information was sufficient to inform the defendant and the court of the nature of the charge. People v Mahone, 97 Mich App 192, 195; 293 NW2d 618 (1980); People v Corbeil, 77 Mich App 691; 259 NW2d 193 (1977). Here the information, containing a general averment that the representation constituted a false pretense, was sufficient to satisfy defendant’s due process right to be apprised of the charges he was called upon to defend against. Cf. People v Mast, 126 Mich App 658; 337 NW2d 619 (1983).

Since defendant’s objection to this defect in the information was not raised below, reversal would be appropriate only if a manifest injustice resulted from the defect. MCL 767.76; MSA 28.1016; People v Mast (On Rehearing), 128 Mich App 613; 341 NW2d 117 (1983); People v Laslo, 78 Mich App 257, 261-262; 259 NW2d 448 (1977). Because the defect could have been corrected by amendment upon timely objection, we perceive no such injustice.

Defendant’s remaining arguments require little discussion. Other defects in the information cited by defendant were similarly not raised below and are hence not preserved for appeal. The representation set forth in the information was one of existing fact, as is correctly discerned in the concurring opinion. The trial court’s findings of fact were adequate, and defendant was found to have employed the same false pretense alleged in the information.

Affirmed.