(dissenting). This is the continuation of the case People v Goss, (Recorder’s Court docket No. 86-007856). Following a jury trial in the Detroit Recorder’s Court, defendant was convicted of first-degree felony murder, MCL 750.316; MSA 28.548, armed robbery, MCL 750.529; MSA 28.797, two counts of assault with intent to commit mur*22der, MCL 750.83; MSA 28.278, two counts of first-degree criminal sexual conduct, MCL 750.520b(l); MSA 28.788(2)(1), and kidnapping, MCL 750.349; MSA 28.581. On appeal, this Court, in an unpublished opinion per curiam, decided March 3, 1989 (Docket No. 99743), affirmed all of defendant’s convictions. On further appeal, the Supreme Court reversed defendant’s conviction of first-degree felony murder on the basis of instructional error. A new trial was ordered for the charge of first-degree felony murder. The Supreme Court’s order states that "[i]n all other respects the judgments of the Court of Appeals and the Recorder’s Court are affirmed.” People v Goss, 437 Mich 1021 (1991).
After remand from the Supreme Court, the issue is whether defendant may relitigate his guilt of the underlying felony of armed robbery or whether the jury will be instructed that the underlying felony has already been proven. The Recorder’s Court ruled that at retrial there could be no mention of defendant’s armed robbery conviction. The court further ruled that all the elements of the crime of felony murder, including defendant’s guilt of the underlying felony, must be proved anew by the prosecutor. I would apply the doctrine of res judicata and hold that defendant is barred from relitigating his guilt of the underlying felony. Accordingly, I respectfully dissent.
i
The doctrine of res judicata applies to criminal proceedings. People v Riley, 72 Mich App 299; 249 NW2d 397 (1976); People v Sharp, 9 Mich App 34, 39; 155 NW2d 719 (1967). "The doctrine of res judicata is to be distinguished from that of collateral estoppel.” People v Schneider, 171 Mich App 82, 86; 429 NW2d 845 (1988).
*23The majority mischaracterizes the issue as one of collateral estoppel rather than res judicata. See, generally, People v Gates, 434 Mich 146, 154, n 7; 452 NW2d 627 (1990), and People v Johnson, 191 Mich App 222, 224; 477 NW2d 426 (1991). In the present case, the bar to relitigation is not collateral to a different cause of action. Rather, the bar arises from a prior adjudication in this case.1 For the most part, the authorities relied upon by the majority are simply not applicable to the present issue. Cf. anno: Modern status of doctrine of res judicata in criminal cases, 9 ALR3d 203.
The majority concludes that defendant’s constitutional rights to a jury trial and to a presumption of innocence would be violated if on retrial the jury is instructed that defendant stands convicted of the underlying felony. I disagree. The facts are that defendant has had a trial by jury on the charge of armed robbery and has been convicted. Further, his conviction has been affirmed by this Court and the Michigan Supreme Court. Under these circumstances, "[o]nce a defendant has been afforded a fair trial and convicted of the offense for which he was charged, the presumption of innocence disappears.” Herrera v Collins, 506 US —; 113 S Ct 853; 122 L Ed 2d 203, 216 (1993).
ii
In People v Ford, 65 Cal 2d 41; 52 Cal Rptr 228; 416 P2d 132 (1966), cert den 385 US 1018 (1967), the California Supreme Court addressed the identical res judicata issue involved in this appeal. In Ford, the jury in the defendant’s first trial convicted him of first-degree felony murder, burglary, *24robbery, kidnapping, and possession of a concealed weapon. On appeal, the defendant’s conviction of first-degree felony murder was reversed because of instructional error and the matter was remanded for retrial. The defendant’s burglary conviction was modified while his other felony convictions were affirmed. At the retrial for felony murder, the defendant argued that it was improper for the jury to be instructed that he stood convicted of robbery, kidnapping, and possession of a concealed weapon. The California Supreme Court disagreed:
He further claims that the instructions were improper because they told the jury that he had been convicted of robbery, kidnapping and possession of a concealable weapon by an ex-felon, and reserved for the jury only the questions whether the homicide was perpetrated during the commission of any or all of these felonies, and whether he possessed the intent requisite to the various felonies at the time of the commission of the homicide.
It is obvious that the felony convictions obtained at the first trial substantially affected the prosecution and defense upon retrial of the murder charge. The burden upon the prosecution was lessened to the extent that it was permitted the benefit of the felony-murder rule without the necessity of having to prove the elements of the respective felonies. Nor was the defense permitted to dispute the fact that the necessary elements of the felonies had been conclusively found. These facts do not, however, compel the conclusion urged upon us by defendant.
The doctrine of res judicata applies to criminal as well as civil proceedings and operates to conclude those matters in issue which the verdict determined though the offenses be different. (Sealfon v United States, 332 US 575, 578; 68 S Ct 237; *2592 L Ed 180 [1948]; see Teitelbaum Furs, Inc v Dominion Ins Co, Ltd, 58 Cal 2d 601, 606; 25 Cal Rptr 559; 375 P2d 439 [1962]). Thus where a defendant is tried on multiple counts of A single information, each count being considered as a separate and distinct offense, the doctrine of res judicata operates to preclude the relitigation of issues finally determined upon retrial of only one count. (See People v Beltran, 94 Cal App 2d 197, 205; 210 P2d 238 [1949], and cases cited and discussed therein.) It follows that the doctrine of res judicata justifies instructions, where relevant, that a defendant has been found guilty of crimes finally adjudicated which are charged as elements in another charge or charges then in the process of being retried. Accordingly, it was not error for the trial court to give appropriate instructions that defendant had been convicted of the various felonies, and that if they found that defendant’s commission of such felonies was conjoined with his commission of the homicide, they might predicate their verdict on the felony-murder rule articulated in Penal Code section 189. [65 Cal 2d 50-51.]
I find Ford persuasive regarding the res judicata issue involved in the present appeal. The constitutional concerns expressed by the majority are not implicated in the context of the present case.
in
I would reverse the denial of the people’s motion in limine and remand with instructions that the jury is to be instructed that defendant stands convicted of armed robbery. The doctrine of res judicata applies and bars defendant from relitigating the armed robbery element of first-degree felony murder.
A retrial on remand is not a "new and independent case” but rather a continuation of the same cause of action. Kepner v United States, 195 US 100, 134; 24 S Ct 797; 49 L Ed 114 (1904) (Holmes, J., dissenting).