Opinion
Docket No. 26339.
Decided June 15, 1976.
Appeal from Oakland, William R. Beasley, J. Submitted May 12, 1976, at Lansing. (Docket No. 26339.) Decided June 15, 1976.
Kenneth C. Smith was charged with negligent homicide. Defendant moved that the information be quashed. Motion granted. The people appeal. Reversed and remanded.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, L. Brooks Patterson, Prosecuting Attorney, Robert C. Williams, Chief Appellate Counsel, and James L. McCarthy, Assistant Appellate Counsel, for the people.
Bornstein, Wishnow, Shaye Schneiderman, for defendant.
Defendant was involved in a personal injury accident on May 5, 1975 and pled guilty to a traffic violation. The victim of the accident subsequently died and defendant was charged with negligent homicide. Defendant withdrew his guilty plea on the traffic violation, pled nolo contendere, and was sentenced. Defendant next successfully moved the circuit court to quash the information on the negligent homicide charge on grounds of double jeopardy. The plaintiff appeals by right from the July 29, 1975 opinion and subsequent order granting that motion.
In People v White, 390 Mich. 245; 212 N.W.2d 222 (1973), our Supreme Court adopted the same transaction test of double jeopardy as outlined in the concurring opinion of Justice Brennan in Ashe v Swenson, 397 U.S. 436; 90 S Ct 1189; 25 L Ed 2d 469 (1970). The Supreme Court also adopted the footnote 7 exception to the test ( 397 US at 453). This Court applied the exception in People v Williams, 61 Mich. App. 642; 233 N.W.2d 122 (1975), and held that where a crime with which defendant was charged was not complete at the time of his earlier plea, his conviction is not barred by double jeopardy. The logic of Williams applies in the present case and reversal is required.
"For example, where a crime is not completed or not discovered, despite diligence on the part of the police, until after the commencement of a prosecution for other crimes arising from the same transaction, an exception to the `same transaction' rule should be made to permit a separate prosecution. (Citations omitted.)"
Even if we consider the nolo contendere plea as erasing the guilty plea and thereby removing this case from the footnote 7 exception, defendant has waived his double jeopardy protection. In People v Goans, 59 Mich. App. 294; 229 N.W.2d 422 (1975), this Court held that when the defendant offers a guilty plea at a time when two charges are pending, with the full awareness that the prosecutor intends to proceed to trial on the other charge, he has waived his right to a single trial on both charges. The Goans reasoning is equally applicable in this case.
Reversed and remanded for proceedings consistent with this opinion.
J.H. GILLIS, P.J., concurred.
I concur with the decision of my brothers to reverse and remand this cause. However, I would do so only on the basis that defendant offered his nolo contendere plea at a time when two charges were pending and he was well aware of the fact that the prosecutor was proceeding on the more serious charge. By so doing, he waives his claim of double jeopardy. People v Goans, 59 Mich. App. 294; 229 N.W.2d 422 (1975).