People v Brown, 220 Mich App 680, 682; 560 NW2d 80 (1996) (internal citations omitted). See also People v Burks, 220 Mich App 253; 559 NW2d 357 (1996). In Burks, this Court determined that MCL 750.195(2), the escape statute under which defendant was sentenced, authorizes the trial court to impose a sentence for an escape offense that was consecutive to the sentence that the defendant is already serving.
As our Court of Appeals has explained, violation of probation is not a crime, and a ruling that probation has been violated is not a new conviction. See People v Johnson, 191 Mich. App. 222, 226-227; 477 N.W.2d 426 (1991); People v Burks, 220 Mich. App. 253, 256; 559 N.W.2d 357 (1996). "If a judge finds that a probationer violated his probation by committing an offense, the probationer is neither burdened with a new conviction nor exposed to punishment other than that to which he was already exposed.
Thus, it is identical in this respect to a probation violation hearing, which is also not a criminal prosecution and "not burden the probationer with a new conviction or expose the probationer to punishment other than that to which the probationer was already exposed as a result of the previous conviction for which the probationer was placed on probation." People v Burks, 220 Mich App 253, 256; 559 NW2d 357 (1996). Indeed, according to the transcript of the October 22, 2018, parole hearing provided to us by defendant, his charge of "assault" and "sexual assault" were treated as duplicative as both being some "kind of assault or intimidating behavior."
However, "[f]or double jeopardy protections to apply, defendant must have first been put in jeopardy by a criminal prosecution in a court of justice." People v Burks, 220 Mich App 253, 256; 559 NW2d 357 (1996). Defendant has provided no evidence that the MDOC punished him for possessing a weapon on April 21, 2014.
In order for double jeopardy to apply, Betlem had to have been placed in jeopardy of criminal prosecution for the acts at issue. People v Burks, 220 Mich App 253, 256; 559 NW2d 357 (1996). However, in the first case, Betlem was not in jeopardy of criminal prosecution for offenses against TB—he was in jeopardy for offenses he committed against his daughter.
Moreover, in People v. Kaczmarek, 464 Mich. 478; 628 N.W.2d 484 (2001), the Supreme Court noted that a violation of probation is not a crime, and that a ruling that probation has been violated is not a new conviction. Id. at 482-483, citing People v. Johnson, 191 Mich. App. 222, 226-227; 477 N.W.2d 426 (1991); People v. Burks, 220 Mich. App. 253, 256; 559 N.W.2d 357 (1996). Instead, the "revocation of probation simply clears the way for a resentencing on the original offense."
The Double Jeopardy Clauses of the federal and state constitutions prohibit a criminal defendant from being placed twice in jeopardy for a single offense. United States v Jorn, 400 U.S. 470, 479; 91 S.Ct. 547; 27 L.Ed.2d 543 (1971); People v Burks, 220 Mich. App. 253, 256; 559 N.W.2d 357 (1996). Our review of the record indicates that the Oakland County prosecutor's charges of kidnapping and CSC I corresponded to the events that occurred in Michigan exclusively.
This was a logical assumption in light of the 1994 amendment to the Michigan Constitution and the fact that "violation of probation is not a crime, and a ruling that probation has been violated is not a new conviction." Kaczmarek, 464 Mich, at 482 (citing People v. Johnson, 191 Mich. App. 222, 226-27 (1991); People v. Burks, 220 Mich. App. 253, 256 (1996)). "Instead, revocation of probation simply clears the way for a re-sentencing on the original offense."
Leave to Appeal Denied September 29, 1997. reported below: 220 Mich. App. 253.