
    PEOPLE v BONDS
    Docket No. 65142.
    Submitted September 16, 1982, at Lansing.
    Decided November 4, 1982.
    Leave to appeal denied, 417 Mich —
    William E. Bonds was charged with larceny in a building. The charge was based upon the shoplifting of a $35 jacket. Pursuant to a plea bargain, defendant pled guilty to attempted larceny in a building in Eaton Circuit Court, Hudson E. Deming, J. Defendant appeals, claiming that the prosecutor abused his discretion by charging him with the felony of larceny in a building rather than the misdemeanor of simple larceny. Held:
    
    A prosecutor may, in the exercise of his discretion, charge a simple shoplifting under the larceny in a building statute rather than the simple larceny statute.
    Affirmed.
    Allen, J., dissented. He would hold that the Legislature did not intend simple shoplifting of a $35 item to be prosecuted under the larceny in a building statute.
    Opinion of the Court
    1. Larceny — Shoplifting — Larceny in a Building — Simple Larceny.
    It is not an abuse of discretion for a prosecutor to charge a person who shoplifted a $35 jacket with the felony of larceny in a building rather than the misdemeanor of simple larceny.
    Dissent by Allen, J.
    2. Larceny — Shoplifting — Larceny in a Building — Simple Larceny.
    
      It was not the intent of the Legislature that the shoplifting of a $35 jacket should be prosecuted with the felony of larceny in a building rather than the misdemeanor of simple larceny; accordingly, under such circumstances, it is an abuse of discretion for a prosecutor to bring the felony charge.
    
    References for Points in Headnotes
    
       50 Am Jur 2d, Larceny §§ 44, 49, 50.
    Validity, construction, and effect of statutes establishing shoplifting as specific criminal offense. 90 ALR2d 811.
    
      
      Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Paul F. Berger, Prosecuting Attorney, and C. Sherman Mowbray, Assistant Prosecuting Attorney, for the people.
    , State Appellate Defender (by Richard B. Ginsberg), for defendant on appeal.
    Before: R. B. Burns, P.J., and Allen and M. J. Kelly, JJ.
   Per Curiam.

Under the terms of a plea bargain defendant pled guilty to attempted larceny in a building. MCL 750.92, 750.360; MSA 28.287, 28.592. He was sentenced to eight months in the county jail.

On appeal, defendant claims that the prosecutor abused his discretion by charging him with larceny in a building rather than a 90-day misdemeanor. Although this Court is split on the issue, we follow the majority in People v Evans, 94 Mich App 4; 287 NW2d 608 (1979), which held that the prosecutor has discretion to choose between both applicable statutes. See also People v Freeland, 101 Mich App 501; 300 NW2d 616 (1980).

Affirmed.

Allen, J.

(dissenting). As a member of the panel in both People v Carmichael, 86 Mich App 418; 272 NW2d 667 (1978), and In re Bay County Prosecutor, 102 Mich App 543; 302 NW2d 225 (1980), I must disagree. The instant case involves the simple shoplifting of a $35 ski jacket. I do not believe the Legislature intended simple shoplifting, a 90-day misdemeanor, to be prosecuted under the larceny in a building statute.  