PEOPLE
v.
SZPARA
Docket No. 142607.
Michigan Court of Appeals.
Decided October 6, 1992, at 9:10 A.M.Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, John D. O'Hair, Prosecuting Attorney, Timothy A. Baughman, Chief of Research, Training, and Appeals, and Jeffrey Caminsky, Assistant Prosecuting Attorney, for the people.
Patricia S. Slomski, for the defendant on appeal.
Before: GRIBBS, P.J., and MARILYN KELLY and REILLY, JJ.
PER CURIAM.
Defendant entered a plea of nolo contendere to one count of assault with intent to commit murder, MCL 750.83; MSA 28.278, and one count of breaking and entering an occupied dwelling with intent to commit a felony, MCL 750.110; MSA 28.305. He was sentenced to concurrent terms of six to twenty years of imprisonment for the assault conviction and six to fifteen years of imprisonment for the breaking and entering conviction. He now appeals as of right. We affirm.
The complainant in this case was defendant's wife. At the time of the incident underlying defendant's convictions the parties were going through a divorce. There was a court order prohibiting defendant from entering the premises that had been the marital home. Despite the court order, defendant broke into the home and severely beat the complainant.
Before being sentenced, defendant moved to withdraw his plea on the breaking and entering charge. The trial court refused to set aside defendant's plea.
*272 Defendant claimed below, and now claims on appeal, that the prosecution could not charge him for breaking and entering his own home and that the exclusive remedy for the entry of his home in violation of the circuit court order is the contempt provision of MCL 552.14(5); MSA 25.94(5). Defendant is, therefore, challenging the prosecution's authority to proceed against him in the first place. See People v Beckner, 92 Mich App 166, 168; 285 NW2d 52 (1979); People v Kotesky, 190 Mich App 330, 331; 475 NW2d 473 (1991). Accordingly, defendant's claim is not waived by his plea of nolo contendere. Beckner, supra at 169.
Nevertheless, we reject defendant's claim. MCL 552.14; MSA 25.94 provides that during a divorce proceeding a court may enter a preliminary injunction prohibiting a party from entering into certain premises. Furthermore, MCL 552.14(5); MSA 25.94(5) provides:
A person who refuses or fails to comply with an order issued pursuant to subsection (1) or (3) is subject to the contempt powers of the court and, if found guilty, shall be imprisoned for not more than 90 days and may be fined not more than $500.00.
The contempt provision for a violation of an injunction in a divorce proceeding and the breaking and entering statute serve different purposes. The contempt provision serves to vindicate the authority of the court, In re Contempt of Rochlin, 186 Mich App 639, 644; 465 NW2d 388 (1990), while the breaking and entering statute punishes a defendant for his criminal actions. "Thus, contempt is designed to punish offenses against the court and, as such, represents a separate and distinct offense from the criminal act which provides the basis for the contempt adjudication." People v *273 McCartney (On Remand), 141 Mich App 591, 596; 367 NW2d 865 (1985).
We also reject defendant's argument that he could not be charged with breaking and entering his own home.[1] In support of his argument, defendant cites People v Eggleston, 186 Mich 510, 515; 152 NW 944 (1915), and People v Gauze, 15 Cal 3d 709; 125 Cal Rptr 773; 542 P2d 1365 (1975). The Court in Eggleston, although not resolving the issue whether the trial court was required to give an instruction that the defendant could not be found guilty of breaking and entering property of which he was partial owner, stated:
If the evidence disclosed the fact that the respondent did in fact have a joint deed of the place into which he was charged with having feloniously broken and entered, and if by reason of the condition of the title to said property the respondent honestly believed that he had a right to enter, it is difficult to see how he could have entertained criminal intent, which is a necessary element of the crime charged. Eggleston, supra at 515.
The court in Gauze found that the defendant in that case could not be guilty of burglarizing (entering with felonious intent) his own home. Gauze, supra at 714. The court noted that the defendant's entry invaded no possessory right of habitation and more importantly that the defendant had an absolute right to enter the apartment. Id.
In this case, defendant had no such right. He was prevented by court order from entering the marital home. Accordingly, he had lost, at least at the time of this incident, whatever rights he had *274 to enter the home, and his entry was against the possessory right of the complainant. See Ex parte Davis, 542 SW2d 192 (Tex Crim App, 1976) (the defendant's right to enter the marital home was negated by a court order giving the defendant's wife exclusive possession of the property and ordering the defendant to stay away from the premises). Therefore, we conclude that defendant was properly charged with breaking and entering.
Although our resolution of this issue makes it unnecessary for us to consider defendant's remaining argument, we note that, even had we found that the breaking and entering charge was improper, we would not remand for resentencing with regard to the assault charge. Our review of the record indicates, contrary to defendant's argument, that the trial court did not rely on the breaking and entering charge when sentencing defendant on the assault charge. Rather the court appropriately considered the violent and brutal manner in which defendant attacked the complainant.
Affirmed.
NOTES
[1] The breaking and entering statute provides, in pertinent part:
Any person who breaks and enters any occupied dwelling house, with intent to commit any felony or larceny therein, shall be guilty of a felony. [MCL 750.110; MSA 28.305.]