People v. Slocum

401 N.W.2d 271, 156 Mich. App. 198, 1986 Mich. App. LEXIS 3019

• Court: Michigan Court of Appeals
• Decided: August 26, 1986
• Docket: Docket 89176
• Status: Published

Opinion

Per Curiam.

This is an appeal by the prosecutor from the trial court’s order dismissing a supplemental information charging defendant with being a second felony offender, MCL 769.10; MSA 28.1082. We reverse.

On September 1, 1985, defendant was bound over to circuit court on the charges of felonious assault, MCL 750.82; MSA 28.277, resisting and obstructing a police officer, MCL 750.479; MSA 28.747, felony-firearm, MCL 750.227b; MSA 28.424(2), and reckless driving, MCL 257.626; MSA 9.2326. On October 1, 1985, the prosecutor filed an habitual offender information based on defendant’s prior conviction for attempted resisting and obstructing a police officer, MCL 750.92; MSA 28.287 and MCL 750.479; MSA 28.747.

Defendant responded with a motion to quash the supplemental information, which the trial court granted by order of November 20, 1985. The court held that, since the offense of attempted resisting and obstructing a police officer is punishable by a maximum sentence of only one year, it does not constitute a felony under the Code of Criminal Procedure and thus does not support an habitual offender information. However, the felony offender statutes 1 provide for enhanced sentencing where a defendant has been previously convicted of a felony or an attempt to commit a felony. In this case, defendant was charged with a supplemental information under MCL 769.10; MSA 28.1082, which provides in relevant part:

If a person has been convicted of a felony, an attempt to commit a felony, or both, whether the conviction occurred in this state or would have been for a felony in this state if the conviction obtained outside this state had been obtained in this state, and that person commits a subsequent felony within this state, the person shall be punished upon conviction as follows. [Emphasis added.]

Another panel of this Court has considered this "attempted felony” language in the context of MCL 769.12; MSA 28.1084. On the basis of a plain reading of the statute, it was concluded that the Legislature does not require that a prior conviction for an attempt to commit a felony constitute a felony in itself as well. A conviction for an attempt to commit a felony supports a supplemental information even if that conviction constitutes a misdemeanor offense. See People v Davis, 89 Mich App 588, 594, 595-596; 280 NW2d 604 (1979). We agree with this analysis and apply it in the context of MCL 769.10; MSA 28.1082.

Defendant in this case was previously convicted for the attempt to commit the offense of resisting and obstructing a police officer. Resisting and obstructing a police officer is a felony for purposes of the Code of Criminal Procedure. See People v Smith, 423 Mich 427; 378 NW2d 384 (1985), and People v DeLong, 128 Mich App 1; 339 NW2d 659 (1983). The trial court thus erred in dismissing the supplemental information filed against defendant on the ground that the prior conviction itself is a misdemeanor.

Defendant alternatively argues that the offense of "attempted resisting and obstructing a police officer” does not exist. Defendant premises his argument on the principle that there is no such crime as an attempted assault. See People v Richard Banks, 51 Mich App 685; 216 NW2d 461 (1974), lv den 392 Mich 765 (1974). The offense of resisting and obstructing a police officer, however, is not an assault offense since any form of resistance or obstruction will support a conviction. In fact, defendant in this case was separately charged with felonious assault for his attack on the police officer.

Reversed.

1 MCL 769.10; MSA 28.1082, MCL 769.11; MSA 28.1083 and MCL 769.12; MSA 28.1084.