Opinion
Docket No. 13232.
Decided September 10, 1974. Leave to appeal denied, 393 Mich ___.
Appeal from Livingston, Paul R. Mahinske, J. Remanded by the Supreme Court for reconsideration, June 27, 1974. (Docket No. 13232.) Decided September 10, 1974. Leave to appeal denied, 393 Mich ___.
Robert Lee Joines was convicted of assault with intent to commit rape. Defendant appealed. Affirmed and remanded for resentencing, 46 Mich. App. 427. Leave to appeal granted and remanded for reconsideration 392 Mich. 764. On remand, reversed.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Edward R. Wilson and William P. Weiner, Special Assistants Attorney General, and Thomas Kizer, Jr., Prosecuting Attorney, for the people.
Robert Lee Joines, in propria persona.
Before: LESINSKI, C.J., and McGREGOR and T.M. BURNS, JJ.
ON REMAND
On June 27, 1974, the Michigan Supreme Court remanded this case for our reconsideration in light of People v White, 390 Mich. 245; 212 N.W.2d 222 (1973).
In our original opinion, reported at 46 Mich. App. 427; 208 N.W.2d 193 (1973), we rejected the "same transaction" test for determining the applicability of the constitutional prohibitions against double jeopardy. US Const, Am V; Const 1963, art 1, § 15. In so doing, we expressly declined to adopt the reasoning of the majority of another panel of this Court, in People v White, 41 Mich. App. 370; 200 N.W.2d 326 (1972). Since that time, our Supreme Court has affirmed the decision in White and embraced the "same transaction" test. People v White, 390 Mich. 245; 212 N.W.2d 222 (1973). Our original opinion is, therefore, erroneous to the extent that it failed to analyze defendant's double jeopardy argument in terms of the more expansive "same transaction" rule.
Having carefully reviewed the facts, we must conclude that, under the "same transaction" test, the prosecution of the defendant in Livingston County for assault with intent to rape after his acquittal in Genesee County on the charge of kidnapping violated the double jeopardy provisions of the state and Federal constitutions. As in White, supra, 259, there can be no doubt that both crimes were "part of a single criminal transaction". Further, "the crimes were committed in a continuous time sequence and display a single intent and goal — sexual intercourse with the complainant".
Conviction reversed.
All concurred.