
    PEOPLE v WILKINS
    Docket No. 54593.
    Submitted December 2, 1981, at Grand Rapids.
    Decided April 8, 1982.
    Nathaniel Wilkins was convicted of carrying a concealed weapon and of being an habitual offender, having been convicted of three prior felonies. The concealed weapon conviction was reversed by the Supreme Court, People v Wilkins, 408 Mich 69 (1980). Upon retrial, Wilkins was again convicted of the concealed weapon charge, after which he was again sentenced as a fourth felony offender, Recorder’s Court of Detroit, Joseph A. Gillis, J. Defendant appeals, alleging that the reversal of the fourth felony conviction automatically acted as a reversal of the habitual offender conviction and that he should not have been sentenced as an habitual offender after his reconviction of the fourth felony. Held:
    
    The habitual felony conviction was not reversed. That conviction was based on the determination that the defendant had committed three prior felonies. The trial court was empowered to sentence him as an habitual offender after he was again convicted of the fourth felony.
    Affirmed.
    1. Criminal Law — Habitual Offenders.
    The people must prove the existence of three prior convictions and the identity of the defendant as the person who committed those offenses in a trial of a defendant as a fourth felony offender (MCL 769.12; MSA 28.1084).
    2. Criminal Law — Habitual Offenders.
    A defendant may be sentenced as a fourth felony offender where, after he has been convicted on such habitual offender charge, the fourth felony conviction has been reversed and the defendant has been retried and again been found guilty of the fourth felony (MCL 769.12; MSA 28.1084).
    
      References for Points in Headnotes
    
       39 Am Jur 2d, Habitual Criminals and Subsequent Offenders § 25.
    Evidence of identity for purposes of statute as to enhanced punishment in case of prior conviction. 11 ALR2d 870.
    
       39 Am Jur 2d, Habitual Criminals and Subsequent Offenders §§ 8, 14.
    
      
      Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, and Anne B. Wetherholt, Assistant Prosecuting Attorney, for the people.
    
      Charles Burke, for defendant on appeal.
    Before; Beasley, P.J., and D. F. Walsh and M. B. Breighner, JJ.
    
      
       Circuit judge, sitting on the Court of Appeals by assignment.
    
   Per Curiam.

Defendant was convicted of carrying a concealed weapon, MCL 750.227; MSA 28.424, and of being an habitual offender, having been convicted of three prior felonies, MCL 769.12; MSA 28.1084. He was sentenced to a term of imprisonment of 15 to 30 years. Both convictions were affirmed by panels of this Court. Subsequently defendant’s conviction for carrying a concealed weapon was reversed by the Supreme Court and the case was remanded for a new trial. The habitual offender conviction has not been reversed or vacated by any appellate court. On retrial, defendant was again convicted of carrying a concealed weapon and was thereafter again sentenced, as a fourth felony offender, to a term of 15 to 30 years.

Defendant contends that the habitual offender conviction was automatically reversed when the conviction for carrying a concealed weapon was reversed. Defendant cites no authority for this proposition and we are not so persuaded.

The trial on an habitual offender information charging the defendant as a fourth felony offender concerns the three prior felonies, not the subsequent fourth felony. People v Hastings, 94 Mich App 488, 491; 290 NW2d 41 (1979). The statute under which defendant was charged provides in pertinent part as follows:

"Sec. 12. (1) If a person has been convicted of 3 or more felonies, * * * and that person commits a subsequent felony within this state, the person shall be punished upon conviction as follows:
"(a) * * * the court * * * may sentence the person upon conviction of the fourth or subsequent offense to imprisonment in a state prison for the term of life or for a lesser term.” (Emphasis supplied.) MCL 769.12; MSA 28.1084.

At the trial on the habitual offender information the people must prove the three prior convictions and the identity of the defendant as the person who committed those offenses. People v Covington, 70 Mich App 188, 191; 245 NW2d 558 (1976). The people sustained this burden of proof in the habitual offender proceeding following the original conviction of carrying a concealed weapon and defendant was properly convicted as an habitual offender, having committed three prior felonies. That conviction was never reversed. The factual determinations essential to support that conviction have never been set aside.

Under the statute, therefore, all that is necessary to empower the court to sentence the defendant as a fourth felony offender after the reversal of the fourth felony conviction is that the defendant be convicted again of the fourth felony offense upon retrial.

We find, therefore, that the trial court properly sentenced the defendant as a fourth felony offender upon his reconviction of carrying a concealed weapon.

Affirmed.  