People v. Curtis

Citation389 Mich. 698,209 N.W.2d 243
Decision Date25 July 1973
Docket NumberNo. 13,13
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jerry CURTIS, Defendant-Appellant.
CourtSupreme Court of Michigan

David L. Smith, Pros. Atty., for Eaton County, Charlotte, for plaintiff-appellee.

Woodrow A. Deppa, Grand Ledge, for defendant-appellant.


T. M. KAVANAGH, Chief Justice.

This case comes before the Court upon appeal from an order of superintending control entered by the Circuit Court of Eaton County. A review of the sequence of events is necessary to understand the nature and the scope of said order.

Defendant was arrested on a complaint and warrant charging sale of marijuana. He was arraigned in District Court and the case was adjourned for a preliminary examination to be held January 10, 1972. On that date, as a result of plea bargaining, the prosecutor moved to amend the original complaint by adding a second count charging defendant with unlawful possession. He also moved to enter a Nolle prosequi as to Count I, Sale. The District Court allowed both motions. An order was entered allowing the amended complaint on January 10, 1972, and the Nolle prosequi on January 12, 1972. Defendant waived examination on the charge of possession.

On January 10, 1972, return was made to Circuit Court on the charge of Possession only. Arraignment was set for January 20, 1972. As a result of an administrative error in the prosecuting attorney's office, an information was filed on January 19 charging defendant with Sale. At the arraignment, the discrepancy between the return and the information was discovered and the prosecutor asked leave of the court to prepare the proper information to comply with the return.

At that point, the Circuit Court judge expressed doubt as to the authority of the District Court to dismiss Count I. He directed that the proper information be filed immediately and reset the hearing for later the same day. The prosecutor then filed an information charging defendant with Possession. In response to this, the Circuit Court Sua sponte, without a hearing, issued an order of superintending control to the District Court requiring that an examination be held by that court as to the charge of sale and a return be made to Circuit Court on that charge if the examination so revealed that charge to be correct. It further ordered that the order of Nolle prosequi issued by the District Court on Count I was thereby declared null and void and without any force or effect whatsoever. The prosecuting attorney and his assistants were further ordered to file the proper information in accordance with the result reached upon examination.

The Court of Appeals, 42 Mich.App. 652, 202 N.W.2d 539, following our recent decision in Genesee Prosecutor v. Genesee Circuit Judge, 386 Mich. 672, 194 N.W.2d 693 (1972), held that the Circuit Court did not have authority to issue an order of superintending control to the prosecutor and his assistants. The Circuit Court has superintending control only over inferior courts and tribunals, not prosecuting attorneys. We affirm that part of their opinion without further discussion. The Court went further and held that the District Court did not have authority to enter the Nolle prosequi. We granted leave (388 Mich. 784).

Several issues are brought before this Court, the determination of which could have a great effect on the efficacy of the plea bargaining system and the prompt and orderly administration of justice. The main issue presented is whether or not a District Court judge may grant an order of Nolle prosequi of any felony charge before him, upon motion of the prosecuting attorney, or whether that discretion is reserved to Circuit Court.

In this case, a Nolle prosequi was granted by the District Court as to Count I, sale of narcotics. Accordingly, no return was made to Circuit Court on this charge, the charge being dismissed. The appellee, and the Honorable Circuit Court Judge, by means of his order of superintending control, take the position that the matter is determined by M.C.L.A. § 767.29; M.S.A. § 28.969, which states:

'It shall not hereafter be lawful for any prosecuting attorney to enter a Nolle prosequi upon any Indictment, or in any other way to discontinue or abandon the same, without stating on the record the reasons therefor And without the leave of the court having jurisdiction to try the offense charged, entered in its minutes.' (Emphasis added)

It is contended that by nature of this language only the Circuit Court can grant leave to Nolle prosequi the case as only that court has jurisdiction to try the offense charged. It is granted that under our laws the court having 'jurisdiction to Try the case' is the Circuit Court. Such was the evident intent of the Legislature in adopting the statute which has remained virtually unchanged since its first adoption in 1846. Similar language is used throughout our Code of Criminal Procedure evidencing this intent. In M.C.L.A. § 766.13; M.S.A. § 28.931:

'If it shall appear to the magistrate upon the examination of the whole matter, either that no offense has been committed or that there is not probable cause for charging the defendant therewith, he shall discharge such defendant. If it shall appear to the magistrate upon the examination of the whole matter, that an offense not cognizable by a justice of the peace has been committed and there is probable cause for charging the defendant therewith, said magistrate shall forthwith bind such defendant To appear before the circuit court of such county or any court having jurisdiction of said cause, For trial.' (Emphasis added)

The parties fail to recognize, however, that M.C.L.A. § 767.29; M.S.A. § 28.969 addresses itself only to Nolle prosequi entered 'upon any Indictment.' 1 The statute is completely silent as to Nolle prosequi entered before any indictment is returned or information is filed with the court. The court also takes notice of the fact that indictments and informations refer to proceedings held within the jurisdiction of the circuit court.

These facts, however, do not answer the question presented. A review of the history of the statute involved and the term 'nolle prosequi' itself is necessary for an understanding of what the People of this State attempted to accomplish by first enacting this statute in 1846. 2

This Court has undertaken to review the common law applicable to 'nolle prosequi' just prior to the enactment of the forerunner of M.C.L.A. § 767.29; M.S.A. § 28.969. The leading case of that time dealing with the right of the prosecutor to enter a Nolle prosequi is United States v. Shoemaker, Fed.Cas.No.16,279, 2 McLean 114 (1840). In that case the court accepted a Nolle prosequi after the jury had been impaneled and sworn. In discussing the right of the prosecutor to take such an action the court states:

'There can be no doubt that, Before the trial is gone into, the prosecuting attorney has a right, Under leave of the Court, to enter a Nolle prosequi on an indictment, and such entry is no bar to a subsequent prosecution for the same offense.' * * *

'The ground on which the prosecution was abandoned Does not appear on the record. The jury were regularly impaneled and sworn to try the issue; witnesses were sworn, and then a nolle prosequi was entered. From the record it would seem probable that the prosecution was abandoned, because of the insufficiency of the evidence to sustain it.' * * *

'* * * If the right to abandon the prosecution be in the prosecuting attorney, with the view of commencing it de novo, it is not preceived on what principle its exercise can be limited. If it exist it would seem to follow that it may be exercised at the discretion of the attorney who represents the government. This would lead to endless vexations in the prosecution of criminal cases.

'The first trial might be considered an experiment to draw forth the evidence in the case, and ascertain if it be insufficient, whether, on another trial, it might not be made strong enough to convict. Such a course would not be tolerated in a civil cause, much less in a criminal one.' (Emphasis added) United States v. Shoemaker, Fed.Cas.No.16,279, 2 McLean (U.S.) 114, 115, 118 (1840).

A further review of the common law reveals that the Nolle prosequi at that time could be retracted at any time, and must have become a Matter of record to prevent a revival of proceedings on the original indictment. It thus appears clear to the court that the forerunner of the present statute in question was enacted to protect the interests of the criminal defendant. This it did by requiring that thereafter all Nolle prosequi would be entered on the record. This statute then had the effect of requiring a prosecuting attorney who entered a Nolle prosequi after indictment to obtain a new indictment and begin proceedings anew if he wished to reinstate the original charge. It thus effectively overruled the old common law rules permitting a prosecutor to retract a Nolle prosequi and immediately proceed to trial on the same indictment. See Commonwealth v. Noah Wheeler et al., 2 Mass 172 (1806). The old rule appears still to be followed in a few of our states today. See Commonwealth v. McLaughlin, 293 Pa. 218, 142 A. 213 (1928); Belcher v. Superior Court In and For Maricopa County, 105 Ariz. 461, 466 P.2d 755 (1970). Today, as long as jeopardy has not attached, or the State of Limitations not run, our law permits a prosecutor to reinstate the original charge on the basis of obtaining a new indictment and thus beginning the process anew.

It does not appear, therefore, that the Legislature in any way attempted to restrict the use of Nolle prosequi in those circumstances where the prosecutor could not, solely at his discretion, reinstate the case for immediate trial. In situations akin to the one before us, this could not be done in any event as no indictment nor information had yet been filed with the...

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