People v. Schuster

Michigan Court of Appeals

People v. Schuster

272 N.W.2d 352, 86 Mich. App. 601, 1978 Mich. App. LEXIS 2619

CourtMichigan Court of Appeals

DecidedOctober 18, 1978

DocketDocket 77-4872

StatusPublished

Cited by3 cases

This text of 272 N.W.2d 352 (People v. Schuster) 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. Schuster, 272 N.W.2d 352, 86 Mich. App. 601, 1978 Mich. App. LEXIS 2619 (Mich. Ct. App. 1978).

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Opinion

Per Curiam.

The defendant, Thomas Schuster, was originally charged in a two-count information with receiving or concealing stolen property, MCL 750.535; MSA 28.803, and unlawfully taking possession of and driving away a motor vehicle, MCL 750.413; MSA 28.645. As part of a plea bargain the prosecutor agreed to drop the latter charge if the defendant pled guilty and was in fact guilty of the receiving or concealing charge. The defendant’s plea to receiving or concealing was accepted by the trial judge, and the defendant was sentenced to 3 years, 3 months to 5 years in prison. The defendant appeals by right. GCR 1963, 806.1.

The facts adduced at the plea proceeding tended to show that the defendant himself took the automobile without any permission from the owner and drove it away with the intent to sell it.

It is readily apparent that no factual basis was established to support the defendant’s conviction of receiving qr concealing. The statute which prohibits buying, receiving, or aiding in the conceal *603 ment of stolen goods does not encompass the thief himself. People v Kyllonen, 402 Mich 135; 262 NW2d 2 (1978). Therefore, the defendant’s conviction must be set aside.

The prosecutor is not barred from reinstating the charge of unlawfully taking possession and driving away a motor vehicle under People v McMiller, 389 Mich 425; 208 NW2d 451 (1973). McMiller prohibits the state from charging the defendant with a higher offense after a guilty plea, arising out of the same transaction, has been accepted. In the present case the crimes of receiving or concealing stolen property and unlawfully taking possession and driving away a motor vehicle are both punishable by a five year maximum prison sentence. Therefore, the latter charge is not a higher offense, and the prosecutor may reinstate it if he feels that the ends of justice will be served thereby.

Reversed and remanded for proceedings not inconsistent with this opinion.

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Per Curiam.

The defendant, Thomas Schuster, was originally charged in a two-count information with receiving or concealing stolen property, MCL 750.535; MSA 28.803, and unlawfully taking possession of and driving away a motor vehicle, MCL 750.413; MSA 28.645. As part of a plea bargain the prosecutor agreed to drop the latter charge if the defendant pled guilty and was in fact guilty of the receiving or concealing charge. The defendant’s plea to receiving or concealing was accepted by the trial judge, and the defendant was sentenced to 3 years, 3 months to 5 years in prison. The defendant appeals by right. GCR 1963, 806.1.

The facts adduced at the plea proceeding tended to show that the defendant himself took the automobile without any permission from the owner and drove it away with the intent to sell it.

It is readily apparent that no factual basis was established to support the defendant’s conviction of receiving qr concealing. The statute which prohibits buying, receiving, or aiding in the conceal *603 ment of stolen goods does not encompass the thief himself. People v Kyllonen, 402 Mich 135; 262 NW2d 2 (1978). Therefore, the defendant’s conviction must be set aside.

The prosecutor is not barred from reinstating the charge of unlawfully taking possession and driving away a motor vehicle under People v McMiller, 389 Mich 425; 208 NW2d 451 (1973). McMiller prohibits the state from charging the defendant with a higher offense after a guilty plea, arising out of the same transaction, has been accepted. In the present case the crimes of receiving or concealing stolen property and unlawfully taking possession and driving away a motor vehicle are both punishable by a five year maximum prison sentence. Therefore, the latter charge is not a higher offense, and the prosecutor may reinstate it if he feels that the ends of justice will be served thereby.

Reversed and remanded for proceedings not inconsistent with this opinion.

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Bluebook (online)

272 N.W.2d 352, 86 Mich. App. 601, 1978 Mich. App. LEXIS 2619, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-schuster-michctapp-1978.

Opinion

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