Opinion
Docket No. 44873.
Decided June 17, 1980.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and James Thompson, Prosecuting Attorney (by Thomas C. Nelson, Assistant Attorney General, Prosecuting Attorneys Appellate Service), for the people.
Walz, Fershee, Jordan Stanton, for defendant.
Before: CYNAR, P.J., and V.J. BRENNAN and M.F. CAVANAGH, JJ.
Defendant was charged with larceny in a building, contrary to MCL 750.360; MSA 28.592. The circuit judge ordered that the charge of larceny in a building be dismissed because the offense for which defendant was charged "in this cause constitutes shoplifting and the Legislature did not intend the larceny in a building felony statute to be used in shoplifting cases". The prosecution claimed this appeal by right.
There is a precedential chain of case authority which establishes the validity of a prosecutor's discretion under these circumstances. See Genesee Prosecutor v Genesee Circuit Judge, 386 Mich. 672, 683; 194 N.W.2d 693 (1972), and the cases cited therein. One of the cited cases, in turn, refers to another established principle of law, namely:
"`It will be conceded that the legislature has the constitutional power to fix the minimum as well as the maximum of the punishment. It has also the exclusive jurisdiction to define "crime" and prescribe the punishment. It is supposed to represent the sentiment and wishes of the people.' * * *
"`The legislature is ordinarily the judge of the expediency of creating new crimes and prescribing penalties, whether light or severe, for prohibited acts.'" People v Mire, 173 Mich. 357, 362; 138 N.W. 1066 (1912). (Citations deleted.)
Our Legislature determined that, amount of the value of the property notwithstanding, it shall be a felony to commit a larceny within a building. MCL 750.360; MSA 28.592. Therefore, where there is evidence to support the two requisite elements of this offense, as there was in this case, it is error for the circuit court to dismiss the charges. The fact that different penalties may result does not, of itself, deprive the prosecutor of the discretion to determine under which statute prosecution will be brought. See United States v Batchelder, 442 U.S. 114; 99 S.Ct. 2198; 60 L.Ed.2d 755 (1979).
In light of the recognition that it is the province of the Legislature to define crimes and prescribe punishments therefor, we note that the Final Draft of the Second Revised Criminal Code proposed for Michigan would retain felony status for the theft of property in a building, while empowering the court in its discretion to reduce the offense to a misdemeanor after conviction in an effort to minimize hardships such as those commented upon in People v Carmichael, 86 Mich. App. 418; 272 N.W.2d 667 (1978), lv den 406 Mich. 949 (1979). See Committee Commentary to §§ 3205 to 3210, Michigan Second Revised Criminal Code, Final Draft — June 1979.
The orders of the lower court dismissing defendant's charge and remanding the cause to district court are reversed.
CYNAR, P.J., concurred.
I would affirm the order of the circuit court dismissing the felony charges here as the facts do clearly show a simple larceny charge at most. See People v Carmichael, 86 Mich. App. 418; 272 N.W.2d 667 (1978), People v Feldman, 87 Mich. App. 157; 274 N.W.2d 1 (1978), People v Evans, 94 Mich. App. 4, 11-12; 287 N.W.2d 608 (1979) (dissent).