
    PEOPLE v FICK PEOPLE v POTTER PEOPLE v UMPHREY
    Criminal Law — Constitutional Law — Double Jeopardy — Single Criminal Transaction.
    A district court trial for a misdemeanor did not operate to bar a subsequent trial in circuit court for separate felonies requiring different evidence but arising out of a time sequence that bespeaks a single criminal episode where the prosecution originally sought to join all the charges arising out of the transaction in one criminal proceeding and at preliminary examination the defendants agreed to have separate trials of the felony and misdemeanor charges.
    Reference for Points in Headnote
    21 Am Jur 2d, Criminal Law § 189.
    Appeal from Bay, John X. Theiler, J.
    Submitted Division 3 February 6, 1973, at Grand Rapids.
    (Docket Nos. 11786-11790, 11880.)
    Decided March 26, 1973.
    Charles Roy Fick, Richard Potter, and Roy J. Umphrey were convicted of the sale of marijuana. Defendants appeal.
    Affirmed but remanded for resentencing.
    
      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Eugene C Penzien, Prosecuting Attorney, for the people.
    
      Bielawski & Skronek and Martin B. Legatz, for defendants Fick and Potter.
    
      Seward, Tally & Newcombe, P. C, for defendant Umphrey.
    
      Before: Danhof, P. J., and R. B. Burns and J. H. Gillis, JJ.
   J. H. Gillis, J.

Defendants were convicted by a judge sitting without a jury of illegal sale of marijuana, MCLA 335.152; MSA 18.1122. They appeal as of right.

The bulk of evidence against all three defendants came from an undercover police officer who had infiltrated a group of people trafficking in drugs in Bay City. The defendants were part of the group but others were involved as well. The infiltration took place over a period of several days in September 1970. As a result of the police officer’s observation and involvement with defendants during that period, separate warrants were obtained charging defendants, and others, with conspiracy to sell amphetamines, sale of marijuana, and conspiracy to sell marijuana.

All charges were set for preliminary examination in district court. At that time counsel for another defendant noted that conspiracy to sell amphetamines was a misdemeanor triable in district court. The district judge and the prosecutor agreed and suggested a trial date be set for all defendants charged with that crime, rather than holding a preliminary examination. Defense counsel for defendants Umphrey, Potter, and Fick agreed.

Defendants were bound over for trial in circuit court on the remaining charges. They stood trial in district court for conspiracy to sell amphetamines and were convicted. They now contend the subsequent trial in circuit court for sale of marijuana subjected them to double jeopardy.

The basis of defendants’ contention is that the district judge presiding at the trial of the conspiracy to sell amphetamines charge allowed in evidence testimony tending to show defendants guilty of sale of marijuana as part of the res gestae and thereafter found, as a matter of fact, that the evidence of sale of marijuana was an integral part of the conspiracy to sell amphetamines.

We agree that the evidence adduced at the preliminary examination as well as the trials in both circuit and district courts showed defendants, during a time span of several days, sold and conspired to sell amphetamines, marijuana, and other prohibited substances. Sales were made from a paper shopping bag which contained a variety of drugs and was carried and passed about with astonishing casualness in a park in Bay City. Clearly, the incidents surrounding the commission of both crimes (as well as others we can glean from the several transcripts) were so intermixed as to be related to one criminal endeavor. However, no compelling logic requires the result for which defendants contend.

The double jeopardy clauses of our Constitutions as employed in both Federal and state courts, consist of two basic rules: first, once a man is convicted, he may not be reprosecuted in order to impose upon him another sentence for the same offense; and second, once a man is acquitted, he may not be reprosecuted for the same offense in order to give the state another chance to convict him. See Green v United States, 355 US 184; 78 S Ct 221; 2 L Ed 2d 199 (1957); see also Comment, Twice in Jeopardy, 75 Yale L J 262 (1965).

The latter rule, barring reprosecution after acquittal, has been conceptually allied with the doctrine of collateral estoppel. See Ashe v Swenson, 397 US 436; 90 S Ct 1189; 25 L Ed 2d 469 (1970); Benton v Maryland, 395 US 784; 89 S Ct 2056; 23 L Ed 2d 707 (1969). Recently, a panel of this Court applied a variation of collateral estoppel by attempting to fashion a "same transaction” test that would bar reprosecution after conviction of an offense committed during a single criminal transaction. People v White, 41 Mich App 370 (1972).

More recently, in response to a similar contention to that raised in White, supra, our Supreme Court stated:

"Defendant further contends that we should prohibit multiple prosecutions arising out of the same factual situation. Defendant properly points out that in some cases multiple prosecutions are prejudicial to a defendant. In some cases multiple prosecutions may aid a defendant. Therefore, we believe a mandatory rule would be an unwise solution to this problem.” People v Grimmett, 388 Mich 590, 607 (1972). (Emphasis supplied.)

It is clear in this case that the convictions entered against defendants were for separate crimes requiring different evidence but arising out of a time sequence that bespeaks a single criminal episode. However, the prosecution originally sought to join all the charges arising out of the transaction in one criminal proceeding. See People v White, supra, 379, 380.

Whatever reasons supported the decision to separate the charges at preliminary examination, defendants agreed to have separate trials. We need not decide whether the holding in People v White, supra, is affected by the quoted decisional language in People v Grimmett, supra. All we hold is that under either decision the references to marijuana in the district court trial, a separate proceeding held pursuant to defendants’ agreement, did not operate to bar the subsequent trial in circuit court.

In People v Lorentzen, 387 Mich 167 (1972), the Supreme Court found the minimum penalty of 20 years imprisonment for sale of marijuana, as set out in MCLA 335.152; MSA 18.1122, unconstitutional. The sentences imposed in the case at bar were made pursuant to that now unconstitutional legislative determination. We remand for resentencing.

Affirmed, but remanded for resentencing.

All concurred. 
      
       At the time, sale of amphetamines was punishable by imprisonment in a county jail for one year or fine of $500 or both. MCLA 335.106; MSA 18.1106. A person found guilty of conspiring to commit such an offense may be punished by imprisonment for one year and a fine of $10,000 may be imposed. MCLA 750.157a; MSA 28.354(1). It would appear that district courts, which have jurisdiction over offenses punishable by one year imprisonment and/or a fine (MCLA 600.8311; MSA 27A.8311) have jurisdiction over such a misdemeanor.
     
      
       The charge of conspiracy to sell marijuana was not prosecuted.
     
      
       US Const, Am 5; Const 1963, art 1, § 15.
     