Fountain rule in Michigan

1982The language in Young, supra, says that the Fountain rule is applicable if the original trial or guilty plea (conviction of third-degree criminal sexual conduct) occurred within 20 days of the Fountain decision.

1982The language in Young, supra, says that the Fountain rule is applicable if the original trial or guilty plea (conviction of third-degree criminal sexual conduct) occurred within 20 days of the Fountain decision.

1980Although our courts do not lack the ability and authority to address particular instances of unfair surprise or prosecutorial misconduct (see People v Marshall, 41 Mich App 66 ; 199 NW2d 521 [1972]), in the inflexibility of its application this Fountain rule seeks to foreclose completely the chance that defendants might suffer harm from such events.

1980Although our courts do not lack the ability and authority to address particular instances of unfair surprise or prosecutorial misconduct (see People v Marshall, 41 Mich App 66 ; 199 NW2d 521 [1972]), in the inflexibility of its application this Fountain rule seeks to foreclose completely the chance that defendants might suffer harm from such events.

1981My separate concurrence is for the sole purpose of articulating my position as to the retroactivity of People v Fountain, supra. In People v Taylor, 99 Mich App 613 ; 299 NW2d 9 (1980), I joined in stating that the Fountain rule should be retroactively applied only where a defen dant has not received notice that a supplemental information would be filed and that lack of notice works to the prejudice of the defendant.

1981My separate concurrence is for the sole purpose of articulating my position as to the retroactivity of People v Fountain, supra. In People v Taylor, 99 Mich App 613 ; 299 NW2d 9 (1980), I joined in stating that the Fountain rule should be retroactively applied only where a defen dant has not received notice that a supplemental information would be filed and that lack of notice works to the prejudice of the defendant.

1981Thus, if applied retroactively to the instant case, Fountain's presumption of prosecutorial knowledge of prior convictions in the same court would apply to make invalid the defendant's habitual offender conviction. *630 Three factors for determining the retroactive application of a new rule of law were described in People v Hampton, 384 Mich 669, 674 ; 187 NW2d 404 (1971).

1981Thus, if applied retroactively to the instant case, Fountain's presumption of prosecutorial knowledge of prior convictions in the same court would apply to make invalid the defendant's habitual offender conviction. *630 Three factors for determining the retroactive application of a new rule of law were described in People v Hampton, 384 Mich 669, 674 ; 187 NW2d 404 (1971).

1980The dimensions of the first Fountain rule are measured by the Court's statement of the question presented by the facts of the Fountain and Jones convictions: "Is it permissible to enhance sentence under the habitual offenders act if the prosecutor has reliable information pertaining to a person's prior felony record before trial but does not charge the person as an habitual offender until after conviction is entered on the current felony charge?" (Footnote omitted.) 407 Mich 96, 97 . *617 That question was answered in the negative.

1980The dimensions of the first Fountain rule are measured by the Court’s statement of the question presented by the facts of the Fountain and Jones convictions: "Is it permissible to enhance sentence under the habitual offenders act if the prosecutor has reliable information pertaining to a person’s prior felony record before trial but does not charge the person as an habitual offender until after conviction is entered on the current felony charge?” (Footnote omitted.) 407 Mich 96, 97 .

1981"Although the result in Jones may not be statutorily or constitutionally required, especially in the absence of any allegation or showing of prejudice from the delay, it is based on this Court’s supervisory powers over the practices and procedures used in the courts of this state.” (Footnote omitted.) Fountain, supra, 99-100 (Coleman, C.J., concurring). 4 Our holding in Martin was also influenced by the fact that, with respect to the need for the prosecutor to proceed promptly, the Supreme Court did not state that it was establishing a new rule but rather indicated that it was applying the rul

1981Affirmed. 1 In Marshall, supra, 71-73 , the Court stated: "The holding of [In re Brazel, 293 Mich 632 ; 292 NW 664 (1940)] and Stratton does not, however, make it mandatory on the part of the prosecutor to proceed against an accused as a subsequent offender prior to conviction, but is merely permissive in that it allows the prosecutor to so proceed.

1981Affirmed. 1 In Marshall, supra, 71-73 , the Court stated: "The holding of [In re Brazel, 293 Mich 632 ; 292 NW 664 (1940)] and Stratton does not, however, make it mandatory on the part of the prosecutor to proceed against an accused as a subsequent offender prior to conviction, but is merely permissive in that it allows the prosecutor to so proceed.

1981In People v Reese, 97 Mich App 785 ; 296 NW2d 172 (1980), the Court balanced the factors bearing on retroactivity in a case where the habitual offender charge was filed after conviction for the principal offense.

1981In People v Reese, 97 Mich App 785 ; 296 NW2d 172 (1980), the Court balanced the factors bearing on retroactivity in a case where the habitual offender charge was filed after conviction for the principal offense.

1981"Although the result in Jones may not be statutorily or constitutionally required, especially in the absence of any allegation or showing of prejudice from the delay, it is based on this Court’s supervisory powers over the practices and procedures used in the courts of this state.” (Footnote omitted.) Fountain, supra, 99-100 (Coleman, C.J., concurring). 4 Our holding in Martin was also influenced by the fact that, with respect to the need for the prosecutor to proceed promptly, the Supreme Court did not state that it was establishing a new rule but rather indicated that it was applying the rul

1981Moreover, we find nothing in the Fountain decision or in any of the decisions upon which it is premised which would preclude a prosecutor from proceeding on recidivist charges against a defendant because the supplemental information containing those charges was not filed simultaneously with the information charging the current offense as long as the supplemental information is filed before trial on the current offense. 2 Further support for this interpretation of Fountain’s prompt filing requirement can be found in the following statement from Justice Levin’s concurring and dissenting opinion