Moore v. Olmstead

• Decision Date: 18 May 1976
• Docket Number: Docket No. 23815--6
• Citation: 69 Mich.App. 16,244 N.W.2d 346
• Parties: Willie James MOORE and Willie Earl Moore, Plaintiffs-Appellants, v. The Honorable Clark M. OLMSTEAD, Judge of the Ninth District Court, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 346

244 N.W.2d 346

69 Mich.App. 16

Willie James MOORE and Willie Earl Moore, Plaintiffs-Appellants, v. The Honorable Clark M. OLMSTEAD, Judge of the Ninth District

Court, Defendant-Appellee.

Docket No. 23815--6.

Court of Appeals of Michigan.

May 18, 1976.

Released for Publication Aug. 11, 1976.

Leave to Appeal Denied Sept. 1, 1976.

Brignall, DeVries & Lamb, P.C., by Richard R. Lamb, Kalamazoo, for plaintiffs-appellants.

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

Before DANHOF, P.J., and QUINN and D. E. HOLBROOK, Jr., JJ.

D. E. HOLBROOK, Jr., Judge.

The plaintiffs, brothers, were initially charged with possession of marijuana. M.C.L.A. § 335.341(4)(d); M.S.A. § 18.1070(41)(4)(d). Following two conferences in the district court's chambers the plaintiffs pled nolo contendere to an added count of illegal use of marijuana. M.C.L.A. § 335.341(5)(d); M.S.A. § 18.1070(41)(5)(d). Each plaintiff received a sentence of one to two years probation and the possession charge was dismissed.

Subsequently, the district court granted the plaintiffs' motion to withdraw their plea based on plaintiffs' claim of innocence, which they made during the plea taking and to their probation officer. ¹ However, the district court also granted the prosecutor's motion to allow the prosecutor to proceed on the original possession charge. The plaintiffs sought a writ of superintending control from the circuit court to prohibit their prosecution on a charge higher than use of marijuana. The circuit court, in a written opinion and order, denied relief. Plaintiffs have filed a claim of appeal with this Court.

The initial question that arises is whether plaintiffs' proper remedy was 'writ of superintending control' or 'interlocutory appeal' from the district to the circuit court. See Cahill v. Fifteenth District Judge, 393 Mich. 137, 224 N.W.2d 24 (1974). If the proper remedy was a writ of superintending control, the plaintiffs have an appeal as of right to the Court of Appeals. GCR 1963, 806.1, M.C.L.A. § 600.309; M.S.A. § 27A.309, Cahill v. Fifteenth District Judge, supra at 144, 224 N.W.2d 24. On the other hand, if the action in the circuit court should have been denominated an interlocutory appeal from the district court, the plaintiffs may only appeal to this Court by leave granted. GCR 1963, 806.2(4), M.C.L.A. § 600.308(2); M.S.A. § 27A.308(2), People v. Markunas, 23 Mich.App. 616, 617, 179 N.W.2d 257 (1970).

A writ of superintending control would be the proper remedy only if plaintiffs did not have an adequate remedy by appeal. In Cahill v. Fifteenth District Judge the Supreme Court found that the plaintiffs therein did not have an adequate remedy to challenge the general policies of the district court except with a writ of superintending control from the circuit court. In this case, however, plaintiffs did have an adequate remedy to challenge the specific ruling of the district court by way of an 'interlocutory appeal' to the circuit court. See GCR 1963, 705.2, M.C.L.A. § 600.8342; M.S.A. § 27A.8342. Hence the action filed in the circuit court in this case was not a true complaint for an order of superintending control and not an original civil action appealable as a matter of right to this Court. Cahill v. Fifteenth District Judge, supra, 393 Mich. at 144, 224 N.W.2d 24.

Since the plaintiffs filed a claim of appeal when they had no appeal as of right we normally would dismiss the plaintiffs' appeal for lack of jurisdiction. See Estate of Freedland, 28 Mich.App. 580, 582, 184 N.W.2d 526 (1970), Hope v. Weiss, 12 Mich.App. 404, 405, 162 N.W.2d 921 (1968). However since the underlying question to be resolved in this case is of major jurisprudential significance we will treat this case as one in which leave has been granted and reach the merits of the underlying issue. GCR 1963, 820.1(7), Radke v. Employment Security Commission, 37 Mich.App. 104, 108, 194 N.W.2d 395 (1971), Accord, Eberts Cadillac Co. v. Miller, 372 Mich. 172, 178, 125 N.W.2d 306 (1963), see also Parshay v. Warden of Marquette Prison, 30 Mich.App. 556, 558, 560, 186 N.W.2d 859 (1971).

In their appeal plaintiffs ask this Court to apply the rule of People v. McMiller, 389 Mich. 425, 208 N.W.2d 451 (1973), Cert. den., 414 U.S. 1080, 94 S.Ct. 599, 38 L.Ed.2d 486 (1973), to prevent the trial court from allowing the prosecutor to try them on the original charge after the trial court exercised its discretion and allowed them to withdraw their pleas of nolo contendere to a lesser offense. ² In a recent memorandum opinion the Supreme Court rejected this argument. People v. Lewandowski, 394 Mich. 529, 232 N.W.2d 173 (1975). There the Supreme Court vacated the defendant's plea to a lesser charge and remanded the case for trial on the original charge.

While it is not necessarily apparent on the opinion's face, our review of the cases cited in People v. Lewandowski and the two opinions of this Court in that case, People v. Lewandowski, 58 Mich.App. 18, 226 N.W.2d 843 (1975), and (On Rehearing), 60 Mich.App. 455, 231 N.W.2d 392 (1975), clearly reveal that in People v. Lewandowski the defendant was professing his innocence after pleading nolo contendere. See,...