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People v. Magby2/15/2002
UNPUBLISHED
ON REMAND
This case is before us on remand from the Supreme Court. On original submission, we concluded that the prosecutor's decision to charge defendant with the Group II offenses did not violate double jeopardy where additional facts to support the more serious charges were not present at the outset, citing People v Harding, 443 Mich 693, 701-702; 506 NW2d 482 (1993). On remand, the Supreme Court has directed us to specifically address three issues: (1) whether jeopardy attached with respect to the Group I offenses when defendant was sentenced therefor; (2) whether the "later facts" exception to double jeopardy includes facts that occur before jeopardy attaches; and (3) determine the date jeopardy attaches in the case of a plea pursuant to People v Cobbs, 443 Mich 276; 505 NW2d 208 (1993), or pursuant to a sentence agreement.
In response to issues one and three, we conclude that when a defendant offers a plea of guilty, jeopardy attaches at the time the defendant is sentenced. People v Grier, 152 Mich App 129, 132; 393 NW2d 551 (1986), citing People v Burt, 29 Mich App 275, 277; 185 NW2d 207 (1970). In response to issue two, we conclude that the "later facts" exception to double jeopardy applies to all facts that arise after a prosecution has commenced, even when those facts arise after a plea of guilty is offered and accepted but before the date the defendant is sentenced on the original charges (the date jeopardy attaches.) We continue to affirm.
In Harding, supra, the defendants were convicted of armed robbery, assault with intent to commit murder, and two counts of possession of a firearm during the commission of a felony in December 1983. The victim of these crimes was shot twice and thrown headfirst into a sewer, but survived. More than four years later, the victim died after playing basketball against his doctor's advice. An autopsy revealed that the cause of death was a result of the permanent damage to the victim's heart from one of the two gunshot wounds. The defendants were then charged with felony-murder and another count of felony-firearm. On appeal, the defendants argued that the prosecution and conviction for felony-murder was precluded by double jeopardy. Our Supreme Court rejected the double jeopardy challenge by holding that there existed an exception to the general rule where additional facts necessary to support a more serious charge had not occurred at the time the prosecution for the lesser crime had begun. Harding, supra at 701-702.
Additionally, in People v Smith, 69 Mich App 537, 538-539; 245 NW2d 125 (1976), the defendant was involved in a personal injury automobile accident and pleaded guilty to a traffic violation. The victim involved in the accident subsequently died, and the defendant was charged with negligent homicide. The defendant moved to withdraw his guilty plea to the traffic violation, pleaded nolo contendere to the traffic violation, and was sentenced. The defendant successfully moved to dismiss the negligent homicide charges on double jeopardy grounds. This Court rejected the double jeopardy challenge, holding that where a crime with which the defendant was charged was not complete at the time of his earlier plea, his conviction was not barred by double jeopardy. Id. at 539. The above-cited case law does not address the "attachment" of double jeopardy. Rather, the language utilized by Michigan courts indicates that there exists an exception to the bar against double jeopardy. Defendant, in the present case, was arraigned on the Group II offenses on the same date that he was sentenced for the Group I offenses. Defendant argues that, because his victim died prior to sentencing, the "later facts" exc
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