Opinion
Docket No. 80935.
Decided March 12, 1985.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, and Nathan T. Fairchild, Prosecuting Attorney, for the people.
William S. Kenyon, for defendant on appeal.
Before: DANHOF, C.J., and BRONSON and R.B. BURNS, JJ.
ON REMAND
The facts of the instant case are set forth in People v McCartney, 132 Mich. App. 547; 348 N.W.2d 692 (1984), and are not restated here. In that case, upon defendant's interlocutory appeal from the trial court's denial of her motion to dismiss, we held that defendant could not be tried for embezzlement by a trustee of a sum in excess of $100, MCL 750.174; MSA 28.371, without violating double jeopardy because defendant had previously had a contempt adjudication entered against her. We stated that the contempt proceedings were criminal in nature and, as such, double jeopardy protections applied. 132 Mich. App. 555 -557. Upon delayed application for leave to appeal to the Supreme Court and in lieu of granting such, the Supreme Court vacated this Court's judgment and remanded "for reconsideration in the light of People v Robideau, 419 Mich. 458 [ 355 N.W.2d 592] (1984)". 419 Mich. 941 (1984).
The focus of our prior opinion was on determining whether the contempt adjudication was criminal in nature. We held that it was and presently adhere to that determination. See Fittante v Schultz, 20 Mich. App. 259; 174 N.W.2d 29 (1969). However, we noted that "[t]he double jeopardy bar against dual prosecution for the same act is thus applicable under the test of Blockburger v United States, 284 U.S. 299, 304; 52 S Ct 180, 182; 76 L Ed 306, 309 (1932), and Michigan's `same transaction' test, People v White, 390 Mich. 245, 258; 212 N.W.2d 222 (1973); Crampton v 54-A Dist Judge, 397 Mich. 489, 499; 245 N.W.2d 28 (1976)". 132 Mich. App. 557, fn 11. In light of the Supreme Court's subsequent disavowal of the Blockburger test in Robideau, supra, p 486, we must reconsider whether defendant's double jeopardy protections were violated in the instant case.
The import of Robideau, supra, in conjunction with the Supreme Court's decision in People v Wakeford, 418 Mich. 95; 341 N.W.2d 68 (1983), is clear: Legislative intent is the crucial aspect of double jeopardy analysis. Although, as noted in Robideau, supra, p 472, much confusion over double jeopardy has resulted from failure to identify the nature of the protection involved, each protection seeks to divine legislative intent. Compare Robideau, supra (single prosecution, two statutes); Wakeford, supra (single prosecution and one statute, but multiple victims); and People v White, supra (successive prosecutions under separate statutes). The instant case involves multiple prosecutions under separate statutes. Accordingly, White, supra, and the "same transaction" test provide the starting point of our analysis.
Since White, supra, p 259, the same transaction test for multiple-prosecution cases has been stated in terms of whether the crimes "were committed in a continuous time sequence and display a single intent and goal". This test, however, was further refined in Crampton v 54-A Dist Judge, supra, p 502, in which the Supreme Court held that where, as here, one or more of the statutory offenses is not a criminal intent crime, the inquiry is whether the offenses were part of the same criminal episode and whether they involve "laws intended to prevent the same or similar harm or evil * * *". In other words, we must ascertain the intent of the Legislature in enacting MCL 600.1701; MSA 27A.1701 as well as in enacting MCL 750.174; MSA 28.371 (embezzlement by a trustee of a sum in excess of $100), and determine whether the Legislature intended that multiple punishments be imposed for such embezzlement when it occurs in a manner which also subjects the defendant to criminal contempt proceedings.
We note that the contempt statute under which defendant was presumably convicted, MCL 600.1701; MSA 27A.1701, does not require criminal intent.
In Robideau, supra, pp 487-488, the Supreme Court noted several general, but nonexhaustive, principles on determining legislative intent. In the present case, however, the Legislature has provided specific guidance on the matter. MCL 600.1745; MSA 27A.1745 states:
"Sec. 1745. Persons proceeded against according to the provisions of this chapter, shall also be liable to indictment for the same misconduct, if it be an indictable offense; but the court before which a conviction shall be had on such indictment shall take into consideration the punishment before inflicted, in imposing sentence."
This provision evinces a clear legislative intent to impose separate punishment on a person who has been adjudged in contempt of court if those actions which constituted contempt are also violative of some criminal provision. As the Supreme Court noted in a case where the crime of perjury was the subject of contempt proceedings, "the one act constitut[es] two offenses, one against the State and the other against the court". In re Murchison, 340 Mich. 151, 155-156; 65 N.W.2d 301 (1954), rev'd on other grounds 349 U.S. 133; 75 S Ct 623; 99 L Ed 942 (1955). Indeed, that contempt and embezzlement do not involve "laws intended to prevent the same or similar harm or evil" is further supported by the Supreme Court's decision in the companion case of In re White, 340 Mich. 140; 65 N.W.2d 296 (1954), in which it was noted that, because the power of contempt speaks to the inherent powers of the court, legislative curtailment of such authority was unconstitutional. Thus, contempt is designed to punish offenses against the court and, as such, represents a separate and distinct offense from the criminal act which provides the basis for the contempt adjudication.
We hasten to add, however, that MCL 600.1745; MSA 27A.1745, while indicating that contempt is a separate offense, instructs that a prior contempt adjudication is to be taken into account in imposing sentence on the underlying offense. And we also note that on the facts before us as recited in our previous decision, it should be remembered, as Judge ALLEN stated in People v Monday, 70 Mich. App. 518, 523; 245 N.W.2d 811 (1976), that "[c]ompassion is still an element of the law. The quality of mercy should not be strained on the facts before us".
Affirmed.