Mikowski v. Weiler

Decision Date06 March 1974
Docket NumberNo. 3,Docket No. 16878,3
Citation52 Mich.App. 66,216 N.W.2d 603
PartiesArthur R. MIKOWSKI, Plaintiff-Appellant, v. Richard P. WEILER, Grand Traverse County Sheriff, Defendant-Appellee
CourtCourt of Appeal of Michigan — District of US

Douglas J. Read, Williams, Coulter, Forster, Cunningham & Davison, Traverse City, for plaintiff-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Michael J. Houlihan, Pros. Atty., for defendant-appellee.

Before R. B. BURNS, P.J., and BRONSON and VanVALKENBURG,* JJ.


On February 5, 1971, plaintiff Arthur R. Mikowski was arraigned on a charge of first-degree murder, 1 at which time he stood mute. On November 4, 1971, plaintiff was rearraigned on an amended information which included, in addition to the murder count, a count for robbery armed. 2

At that time plaintiff pled guilty to the robbery armed count. Subsequent to sentencing, plaintiff was imprisoned and he brought an appeal from the guilty plea. On November 15, 1972, this Court, in an unreported opinion, vacated the guilty plea and remanded the case to the circuit court. On February 28, 1973, plaintiff was rearraigned on the original murder count, which had never been dismissed.

Plaintiff thereafter filed a petition for habeas corpus with the circuit court alleging that he was being improperly held on the murder charge. Plaintiff argued that since no attempt had been made to bring him to trial within 180 days after being imprisoned on the armed robbery count, by statute 3 the prosecutor could no longer try him on the murder count. The prosecutor argued that the 180-day statute was not applicable because, since the murder and robbery arose out of the same transaction, he could not bring plaintiff to trial on the murder count during the period of incarceration on the robbery count by reason of the fact that such would constitute double jeopardy. The prosecutor also argued that he was barred from trying plaintiff on the murder charge during that period by virtue of the bargain entered into at the time of the plea, and, in any event, the prosecutor's contesting of the appeal from the guilty plea constituted a sufficient attempt to take further action on the murder charge to satisfy the statute. On March 23, 1973, the trial court dismissed the writ and ordered the cause to proceed to trial on the charge of murder in the first degree.

Plaintiff then filed a complaint for habeas corpus in this Court, which was treated as a complaint for superintending control. Plaintiff sought an order directing the trial court to proceed against him only on the count charging armed robbery. An order to show cause why such an order should not issue was issued by this Court.

It should be noted that during the pendency of the complaint in this Court the Supreme Court released its decision in People v. McMiller, 389 Mich. 425, 431--432, 433--434, 208 N.W.2d 451, 453--454 (1973), wherein the Court stated:

'Among the considerations in formulating a policy regarding prosecutions following the successful appeal of a plea-based conviction, there are two we find overriding which impel us to our decision:

'Allowing trial on a higher charge following reversal of a plea-based conviction of a lesser offense would (1) discourage exercise of the defendant's right to appeal a conviction claimed to be based on an improperly accepted plea, and (2) tend to insulate from appellate scrutiny non-compliance with the guilty plea procedure established by the statute and the court rule.'

'By agreeing to a plea to a lesser offense the prosecutor thereby vouches that the ends of justice will be served by accepting a plea of guilty to that offense. We perceive, therefore, even in the relatively few cases where defendants will succeed on appeal in setting aside a guilty-plea-based conviction, no erosion of law enforcement in the rule we adopt.

'A prosecutor can protect himself against being forced to try a defendant on a lesser offense by calling the attention of the judge, before he accepts a plea of guilty, to any failure to comply with the prescribed procedure for taking such a plea.

'For these reasons we hold that upon the acceptance of a plea of guilty, as a matter of policy, the state may not thereafter charge a higher...

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3 cases
  • People v. Strickland, Docket No. 28472
    • United States
    • Court of Appeal of Michigan — District of US
    • September 6, 1977
    ...110, 226 N.W.2d 74 (1974), and People v. McGreevy, 52 Mich.App. 52, 216 N.W.2d 623 (1974). Compare Mikowski v. Grand Traverse County Sheriff, 52 Mich.App. 66, 216 N.W.2d 603 (1974), but contrast People v. Goins, 54 Mich.App. 456, 221 N.W.2d 187 (1974). This Court has repeatedly held that Mc......
  • People v. Mazzie
    • United States
    • Court of Appeal of Michigan — District of US
    • November 9, 1984
    ...fact finder has chosen to find him guilty of a lesser offense." (Emphasis in original.) In Milkowski v. Grand Traverse County Sheriff, 52 Mich.App. 66, 70, 216 N.W.2d 603 (1974), this Court "While the Court in McMiller did, indeed, use the terms 'higher offense' and 'lesser offense', we thi......
  • People v. Tillman
    • United States
    • Court of Appeal of Michigan — District of US
    • September 5, 1978
    ...when the defendant pled guilty to the other and reinstated when the plea was set aside), in Mikowski v. Grand Traverse County Sheriff, 52 Mich.App. 66, 216 N.W.2d 603 (1974), Lv. den. 391 Mich. 835 (1974), a panel of this Court concluded that additional charges arising out of the same trans......

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