People v. Phillip Smith

Michigan Court of Appeals

People v. Phillip Smith

282 N.W.2d 399, 90 Mich. App. 572, 1979 Mich. App. LEXIS 2194

CourtMichigan Court of Appeals

DecidedJune 6, 1979

DocketDocket 77-1928, 77-1929

StatusPublished

Cited by6 cases

This text of 282 N.W.2d 399 (People v. Phillip Smith) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Phillip Smith, 282 N.W.2d 399, 90 Mich. App. 572, 1979 Mich. App. LEXIS 2194 (Mich. Ct. App. 1979).

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Opinions

D. C. Riley, P.J.

On February 11, 1977, defendant Phillip Smith, 15 years old, pled guilty to three separate counts of armed robbery, MCL 750.529; MSA 28.797, pursuant to the following plea bargain:

"The People also would promise that if Your Honor would sentence on sentencing date this defendant to a minimum term of ten years or more, we would not prosecute him as a Habitual. And that’s a promise we made based on sentencing, so that’s a conditional promise that we have made.”

Defendant was sentenced to three concurrent terms of 10 to 15 years imprisonment, appeals two [574]*574of the convictions by right, and alleges that, as he could not have been prosecuted as a habitual offender, his guilty pleas were involuntary due to the illusory nature of the prosecutor’s bargain. Our careful review of the record persuades us to agree.

Under Michigan’s multiple offender recidivist statutes, MCL 769.10 et seq.; MSA 28.1082 et seq., in order for a defendant to be subject to supplementation, the first felony conviction must predate the commission of the second felony. People v Roderick Johnson, 86 Mich App 77, 79; 272 NW2d 200 (1978). The record discloses that at the time defendant committed each offense to which he pled guilty, he had not been convicted of any previous felonies. Nor does the fact that each of defendant’s present felonies to which he pled were committed at different points in time alleviate the infirmity. People v Roderick Johnson, supra, at 79-80.

As defendant’s plea was induced by a promise to forego a recidivist proceeding where no such proceeding was warranted, defendant was per se misinformed as to the benefit of his plea and the bargain was hence illusory. People v Roderick Johnson, supra, at 79. See People v Lawson, 75 Mich App 726; 255 NW2d 748 (1977), Hammond v United States, 528 F2d 15 (CA 4, 1975).

Defendant’s convictions are reversed.

Beasley, J., concurred.

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D. C. Riley, P.J.

On February 11, 1977, defendant Phillip Smith, 15 years old, pled guilty to three separate counts of armed robbery, MCL 750.529; MSA 28.797, pursuant to the following plea bargain:

"The People also would promise that if Your Honor would sentence on sentencing date this defendant to a minimum term of ten years or more, we would not prosecute him as a Habitual. And that’s a promise we made based on sentencing, so that’s a conditional promise that we have made.”

Defendant was sentenced to three concurrent terms of 10 to 15 years imprisonment, appeals two [574]*574of the convictions by right, and alleges that, as he could not have been prosecuted as a habitual offender, his guilty pleas were involuntary due to the illusory nature of the prosecutor’s bargain. Our careful review of the record persuades us to agree.

Under Michigan’s multiple offender recidivist statutes, MCL 769.10 et seq.; MSA 28.1082 et seq., in order for a defendant to be subject to supplementation, the first felony conviction must predate the commission of the second felony. People v Roderick Johnson, 86 Mich App 77, 79; 272 NW2d 200 (1978). The record discloses that at the time defendant committed each offense to which he pled guilty, he had not been convicted of any previous felonies. Nor does the fact that each of defendant’s present felonies to which he pled were committed at different points in time alleviate the infirmity. People v Roderick Johnson, supra, at 79-80.

As defendant’s plea was induced by a promise to forego a recidivist proceeding where no such proceeding was warranted, defendant was per se misinformed as to the benefit of his plea and the bargain was hence illusory. People v Roderick Johnson, supra, at 79. See People v Lawson, 75 Mich App 726; 255 NW2d 748 (1977), Hammond v United States, 528 F2d 15 (CA 4, 1975).

Defendant’s convictions are reversed.

Beasley, J., concurred.

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Bluebook (online)

282 N.W.2d 399, 90 Mich. App. 572, 1979 Mich. App. LEXIS 2194, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-phillip-smith-michctapp-1979.

Opinions

D. C. Riley, P.J.

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