People v. Caballero

• Citation: 463 N.W.2d 891,437 Mich. 884
• Decision Date: 27 December 1990
• Docket Number: No. 89954,No. 121163,89954,121163
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. David Lee CABALLERO, Defendant-Appellant. COA437 Mich. 884, 463 N.W.2d 891
• Court: Supreme Court of Michigan

Page 891

463 N.W.2d 891

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. David Lee CABALLERO, Defendant-Appellant.

No. 89954.

COA No. 121163.

437 Mich. 884, 463 N.W.2d 891

Supreme Court of Michigan.

Dec. 27, 1990.

ORDER

On order of the Court, the application for leave to appeal is considered, and it is DENIED, because we are not persuaded that the questions presented should now be reviewed by this Court.

LEVIN, J., would issue an order directing the people to show cause why the decision of the Court of Appeals should not be vacated on the authority of In re People v. Burton, 429 Mich. 133, 413 N.W.2d 413 (1987), and People v. Schindler, 433 Mich. 870, 445 N.W.2d 444 (1989). ¹

I

David Caballero was convicted following a bench trial in 1989 of two counts of first-degree criminal sexual conduct. ² The circuit judge vacated Caballero's convictions and granted him youthful trainee status under the Youthful Trainee Act. ³

The people filed a complaint for superintending control with the Court of Appeals. That Court reversed the order that had vacated Caballero's convictions, set aside the order granting Caballero youthful trainee status, and remanded the case for sentencing before a different judge. ⁴

Caballero moved, on remand, for an evidentiary hearing and a new trial, alleging ineffective assistance of counsel. The judge set aside Caballero's conviction and ordered a new trial on the ground that Caballero had been denied the effective assistance of counsel. The people appealed on leave granted by the Court of Appeals. That Court reversed, finding that Caballero had not been denied the effective assistance of counsel. The Court reversed the order that had set aside Caballero's convictions, reinstated the convictions, and once again remanded for resentencing with yet another judge. People v. Caballero, 184 Mich.App. 636, 459 N.W.2d 80 (1990). Caballero has applied for leave to appeal to this Court.

II

In Burton, this Court held that an order granting a new trial in a criminal case, not reviewable by the Court of Appeals on leave granted, ⁵ was not reviewable by superintending control.

The Legislature responded to Burton by enacting 1988 PA 66, which provides, in effect, that the people may take an appeal either as of right or on leave granted in any case if the Double Jeopardy Clause would not bar further proceedings, but specifically provides:

"This amendatory act shall take effect March 30, 1988 and apply to crimes committed on or after that date." ⁶

The sexual act charged against Caballero occurred on December 18, 1987, over three months before March 30, 1988.

In Schindler, 433 Mich. 870, 445 N.W.2d 444 (1989), this Court vacated the judgment of the Court of Appeals and remanded the case to the circuit court for a new trial, citing Burton. In Schindler, the defendant had similarly been convicted of criminal sexual conduct. A circuit judge had similarly concluded that Schindler had been denied the effective assistance of counsel and granted a new trial. The Court of Appeals had similarly entered an order setting aside the order granting a new trial. Bay Co. Prosecutor v. Bay Circuit Judge, 174 Mich.App. 269, 435 N.W.2d 757 (1988).

It appears, accordingly, that the Court of Appeals could not properly exercise jurisdiction in the instant case.

III

The Court of Appeals was, and this Court now is, obliged to recognize the absence of jurisdiction although it appears that the issue was not raised in the Court of Appeals; ⁷

"Courts are bound to take notice of the limits of their authority, and a court may, and should, on its own motion, though the question is not raised by the pleadings or by counsel, recognize its lack of jurisdiction and act accordingly by staying proceedings, dismissing the action, or otherwise disposing thereof, at any state of the proceeding." In re Fraser Estate, 288 Mich. 392, 394, 285 N.W. 1 (1939). ⁸

"An order entered by a court without jurisdiction 'is absolutely void.' " In re Hague, 412 Mich. 532, 544, 315 N.W.2d 524 (1982).

"If there is a true jurisdictional defect, the court has acted without authority, its judgment is a nullity and is always subject to collateral attack." Edwards v. Meinberg, 334 Mich. 355, 359, 54 N.W.2d 684 (1952).

In Liberty Mutual Ins. Co. v. Wetzel, 424 U.S. 737, 740, 96 S.Ct. 1202, 1204, 47 L.Ed.2d 435 (1976), the United States Supreme Court said:

"Though neither party has questioned the jurisdiction of the Court of Appeals to entertain the appeal, we are obligated to do so on our own motion if a question thereto exists [citation omitted]. Because we conclude that the District Court's order was not appealable to the Court of Appeals, we vacate the judgment of the Court of Appeals with instructions to dismiss the petitioner's appeal from the order of the District Court."

The Court has also said that in such a case, a supreme court has "jurisdiction on appeal, not of the merits, but merely for the purpose of correcting the error of the lower court in entertaining the suit." United States v. Corrick, 298 U.S. 435, 440, 56 S.Ct. 829, 831, 80 L.Ed. 1263 (1936).

1 I would further direct that counsel brief the question whether the failure to raise the jurisdictional issue on appeal (see part III) constituted, although Caballero's counsel was retained and was not assigned counsel (see Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 [1980] ), ineffective assistance of counsel within the meaning of the state and federal constitutional provisions.

2 M.C.L. Sec. 750.520b; M.S.A. Sec. 28.788(2).

3 M.C.L. Sec. 762.11; M.S.A. Sec. 28.853(11)

4 Order of the Court of Appeals decided June 14, 1989 (Docket No. 116430).

5 See People v. Cooke, 419 Mich. 420, 355 N.W.2d 88 (1984).

6 The court rule concerning the "Jurisdiction of the Court of Appeals" provides:

"(E) Appeals by Prosecution. Appeals by the prosecution in criminal cases are governed by MCL 770.12; MSA 28.1109 ." MCR 7.203(E).

7 Morris v. Gilmer, 129 U.S. 315, 325, 326, 9 S.Ct. 289, 292, 293, 32 L.Ed. 690 (1889); Mansfield, C & LMR Co. v. Swan, 111 U.S. 379, 382, 383, 384, 4 S.Ct. 510, 511, 512, 513, 28 L.Ed. 462 (1884); Ins. Corp. of Ireland, Ltd. v. Compagnie Des Bauxites De Guinee, 456 U.S. 694, 702, 102 S.Ct. 2099, 2104, 72 L.Ed.2d 492 (1982); Bender v. Williamsport Area School Dist., 475 U.S. 534, 541, 545, 546, 106 S.Ct. 1326, 1331, 1333, 1334, 89 L.Ed.2d 501 (1986); Mt. Healthy City School Dist. Bd. of Ed. v. Doyle, 429 U.S. 274, 278, 97 S.Ct. 568, 571, 50 L.Ed.2d 471 (1977); Liberty Mutual Ins. Co. v. Wetzel, 424 U.S. 737, 740, 96 S.Ct. 1202, 1204, 47 L.Ed.2d 435 (1976); Andrus v. Charlestone Stone Products Co., 436 U.S. 604, 607 n. 6, 98 S.Ct. 2002, 2005 n. 6, 56 L.Ed.2d 570 (1978); Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S.Ct. 1843, 1848, 23 L.Ed.2d 404 (1969); FW/PBS, Inc. v. Dallas, 493 U.S. ----, ----, 110 S.Ct. 596, 607, 107 L.Ed.2d 603, 621 (1990); Mitchell v. Maurer, 293 U.S. 237, 244, 55 S.Ct. 162, 165, 79 L.Ed. 338 (1934); United States v. Corrick, 298 U.S. 435, 440, 56 S.Ct. 829, 831, 80 L.Ed. 1263 (1935); Greenvault v. Farmers & Mechanics' Bank, 2 Doug. 498 (Mich.1847); In re Fraser Estate, 288 Mich. 392, 394, 285 N.W. 1 (1939); Lamberton v. Pawloski, 248 Mich. 330, 349, 350, 351, 227 N.W. 801 (1929); Carpenter v. Dennison, 208 Mich. 441, 447, 175 N.W. 419 (1919); Miller v. Johnson, 201 Mich. 535, 536, 167 N.W. 834 (1918); Warner v. Noble, 286 Mich. 654, 659, 282 N.W. 855 (1938); Haenlein v. Saginaw Trades Council, 361 Mich. 263, 271, 105 N.W.2d 166 (1960); Fox v. Univ. of Michigan Bd. of Regents, 375 Mich. 238, 242, 134 N.W.2d 146 (1965); Lehman v. Lehman, 312 Mich. 102, 105, 106, 19 N.W.2d 502 (1945); In re Ives, 314 Mich. 690, 696, 23 N.W.2d 131 (1946); Edwards v. Meinberg, 334 Mich. 355, 359, 54 N.W.2d 684 (1952); Bolton v. Cummings, 200 Mich. 234, 235, 167 N.W. 19 (1918); J.F. Hartz Co. v. Lukaszcewski, 200 Mich. 230, 233, 234, 167 N.W. 18 (1918); Kalamazoo Twp. v. Kalamazoo Co. Supervisors, 349...