Opinion
Docket No. 89176.
Decided August 26, 1986.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Joseph T. Barberi, Prosecuting Attorney, and Mark H. Duthie, Assistant Prosecuting Attorney, for the people.
Richard S. Allen, for defendant.
This is an appeal by the prosecutor from the trial court's order dismissing a supplemental information charging defendant with being a second felony offender, MCL 769.10; MSA 28.1082. We reverse.
On September 1, 1985, defendant was bound over to circuit court on the charges of felonious assault, MCL 750.82; MSA 28.277, resisting and obstructing a police officer, MCL 750.479; MSA 28.747, felony-firearm, MCL 750.227b; MSA 28.424(2), and reckless driving, MCL 257.626; MSA 9.2326. On October 1, 1985, the prosecutor filed an habitual offender information based on defendant's prior conviction for attempted resisting and obstructing a police officer, MCL 750.92; MSA 28.287 and MCL 750.479; MSA 28.747.
Defendant responded with a motion to quash the supplemental information, which the trial court granted by order of November 20, 1985. The court held that, since the offense of attempted resisting and obstructing a police officer is punishable by a maximum sentence of only one year, it does not constitute a felony under the Code of Criminal Procedure and thus does not support an habitual offender information. However, the felony offender statutes provide for enhanced sentencing where a defendant has been previously convicted of a felony or an attempt to commit a felony. In this case, defendant was charged with a supplemental information under MCL 769.10; MSA 28.1082, which provides in relevant part:
MCL 769.10; MSA 28.1082, MCL 769.11; MSA 28.1083 and MCL 769.12; MSA 28.1084.
If a person has been convicted of a felony, an attempt to commit a felony, or both, whether the conviction occurred in this state or would have been for a felony in this state if the conviction obtained outside this state had been obtained in this state, and that person commits a subsequent felony within this state, the person shall be punished upon conviction as follows. [Emphasis added.]
Another panel of this Court has considered this "attempted felony" language in the context of MCL 769.12; MSA 28.1084. On the basis of a plain reading of the statute, it was concluded that the Legislature does not require that a prior conviction for an attempt to commit a felony constitute a felony in itself as well. A conviction for an attempt to commit a felony supports a supplemental information even if that conviction constitutes a misdemeanor offense. See People v. Davis, 89 Mich. App. 588, 594, 595-596; 280 N.W.2d 604 (1979). We agree with this analysis and apply it in the context of MCL 769.10; MSA 28.1082.
Defendant in this case was previously convicted for the attempt to commit the offense of resisting and obstructing a police officer. Resisting and obstructing a police officer is a felony for purposes of the Code of Criminal Procedure. See People v. Smith, 423 Mich. 427; 378 N.W.2d 384 (1985), and People v. DeLong, 128 Mich. App. 1; 339 N.W.2d 659 (1983). The trial court thus erred in dismissing the supplemental information filed against defendant on the ground that the prior conviction itself is a misdemeanor.
Defendant alternatively argues that the offense of "attempted resisting and obstructing a police officer" does not exist. Defendant premises his argument on the principle that there is no such crime as an attempted assault. See People v. Richard Banks, 51 Mich. App. 685; 216 N.W.2d 461 (1974), lv den 392 Mich. 765 (1974). The offense of resisting and obstructing a police officer, however, is not an assault offense since any form of resistance or obstruction will support a conviction. In fact, defendant in this case was separately charged with felonious assault for his attack on the police officer.
Reversed.