Opinion
Docket No. 65142.
Decided November 4, 1982. Leave to appeal denied, 417 Mich ___.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Paul F. Berger, Prosecuting Attorney, and C. Sherman Mowbray, Assistant Prosecuting Attorney, for the people.
State Appellate Defender (by Richard B. Ginsberg), for defendant on appeal.
Before: R.B. BURNS, P.J., and ALLEN and M.J. KELLY, JJ.
Under the terms of a plea bargain defendant pled guilty to attempted larceny in a building. MCL 750.92, 750.360; MSA 28.287, 28.592. He was sentenced to eight months in the county jail.
On appeal, defendant claims that the prosecutor abused his discretion by charging him with larceny in a building rather than a 90-day misdemeanor. Although this Court is split on the issue, we follow the majority in People v Evans, 94 Mich. App. 4; 287 N.W.2d 608 (1979), which held that the prosecutor has discretion to choose between both applicable statutes. See also People v Freeland, 101 Mich. App. 501; 300 N.W.2d 616 (1980).
Affirmed.
As a member of the panel in both People v Carmichael, 86 Mich. App. 418; 272 N.W.2d 667 (1978), and In re Bay County Prosecutor, 102 Mich. App. 543; 302 N.W.2d 225 (1980), I must disagree. The instant case involves the simple shoplifting of a $35 ski jacket. I do not believe the Legislature intended simple shoplifting, a 90-day misdemeanor, to be prosecuted under the larceny in a building statute.