People v. Dickens, Docket No. 25329

• Decision Date: 05 January 1977
• Docket Number: Docket No. 25329
• Citation: 250 N.W.2d 809,73 Mich.App. 150
• Parties: In the Matter of PEOPLE of the State of Michigan v. Samuel Lee DICKENS, Appellee. PEOPLE of the State of Michigan, Plaintiff-Appellant, v. RECORDER'S COURT JUDGE, Defendant. 73 Mich.App. 150, 250 N.W.2d 809
• Court: Court of Appeal of Michigan — District of US

Page 809

250 N.W.2d 809

In the Matter of PEOPLE of the State of Michigan v. Samuel Lee DICKENS, Appellee.

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. RECORDER'S COURT JUDGE, Defendant.

Docket No. 25329.

73 Mich.App. 150, 250 N.W.2d 809

Court of Appeals of Michigan.

Jan. 5, 1977.

Released for Publication Feb. 28, 1977.

[73 MICHAPP 151] Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Patricia J. Boyle, Appellate Chief Asst. Pros. Atty., Larry L. Roberts, Asst. Pros. Atty., for plaintiff-appellant.

Alphonso R. Harper, Judicial Asst., Carl B. Bolden, Jr., Detroit, for Dickens.

Before QUINN, P.J., and R. B. BURNS and CAVANAGH, JJ.

CAVANAGH, Judge.

Samuel L. Dickens (defendant) was arrested and charged with armed robbery, M.C.L.A. § 750.529; M.S.A. § 28.797. At the conclusion of the preliminary examination, Recorder's Court Judge Gardner, acting in the capacity of magistrate, dismissed the charge against the defendant on the ground that the prosecutor had failed to show probable cause that the defendant had participated in the crime. The prosecutor petitioned Wayne County Circuit Court for an order of superintending control requiring the defendant's case to be bound over for trial. The circuit court denied the order and the prosecutor appeals as of right.

I

This case and its companion, People v. Recorder's Court Judge #2, 73 Mich.App. 156, 250 N.W.2d 812 [73 MICHAPP 152] (1977), present a common procedural issue. Was superintending control the appropriate method to review the decision of the recorder's court sitting as a magistrate? If it was, the prosecutor properly sought review by claim of appeal. If not, application for leave to appeal was required, M.C.L.A. § 600.8342; M.S.A. § 27A.8342.

We hold that review by the people of a decision by the recorder's court to discharge a defendant at the conclusion of a preliminary examination is by complaint for an order of superintending control in Wayne County Circuit Court, followed by appeal as of right to this Court. Although it creates an anomaly within the otherwise orderly structure of appellate review of magisterial decisions by Appeal by right to the circuit court, followed by appeal by leave to this Court, the overwhelming case authority compels this result. We cannot redraft the statutory or rule authority to provide otherwise. A brief historical review illuminates the problem.

Recorder's court began as a court with bifurcated jurisdiction. 1857 P.A. 55, ch. VI vested the court with both criminal subject matter jurisdiction equal to that of a circuit court over crimes committed within the City of Detroit and exclusive jurisdiction over violations of municipal ordinances. Cases before the recorder's court sitting as a circuit court were properly reviewed in the Supreme Court by appeal. People v. Jackson, 7 Mich. 432 (1859). Cases brought before the recorder's court ordinance division, considered to act as a municipal court, were properly reviewed in Wayne County Circuit Court by writ of certiorari. Swift v. Wayne Circuit Judges, 64 Mich. 479, 31 N.W. 434 (1887).

Until 1919, the Detroit Police Court provided the magisterial functions for the recorder's court. [73 MICHAPP 153] 1919 P.A. 369, § 10; M.C.L.A. § 725.10; M.S.A. § 27.3950 abolished the Detroit Police Court by vesting its jurisdiction into the municipal court of record, the recorder's court. The present recorder's court retains these three separate jurisdictional grants: circuit court criminal subject matter jurisdiction, district court jurisdiction as examining magistrate, and municipal court jurisdiction over ordinance violations. Unfortunately, the Legislature and the courts have failed to recognize the separate jurisdictional grants and functions of the recorder's court when providing for appellate review.

While M.C.L.A. § 726.24; M.S.A. § 27.3574 ¹ provides review by appeal for decisions of the recorder's court sitting as circuit court, and M.C.L.A. § 600.308(1); M.S.A. § 27A.308(1) ² provides review by appeal to the circuit court for decisions of the recorder's court ordinance division, neither statute nor court rule provide for review of the recorder's court sitting as an examining magistrate. People v. Paille #1, 383 Mich. 605, 178 N.W.2d 469 (1970), held that M.C.L.A. § 726.2; M.S.A. § 27.3552 ³ prevents one [73 MICHAPP 154] recorder's court judge from reviewing the decision of another by order of superintending control. The Supreme Court indicated in Paille #1, supra, and People v. Flint Municipal Judge, 383 Mich. 429, 175 N.W.2d 750 (1970), that review of a magistrate's decision was by way of order of superintending control (formerly mandamus) in the circuit court. While the provisions of M.C.L.A. § 600.8342; M.S.A. § 27A.8342 and GCR 1963, 705 have eliminated the need to use superintending control to obtain review of the decision of a district court sitting as a magistrate (see the companion cases of Matter of Zuppke, Oakland County Prosecutor v. 46th District Judge, 72 Mich.App. 564, 250 N.W.2d 127 (1976), and People v. Kessler (Docket No. 28076, decided December 8, 1976 (unreported)), superintending control remains the only remedy for the prosecutor to obtain review of the decision of recorder's court as a magistrate. Ironically, the process of review of decisions of the recorder's court ordinance division, used as a model for the process of review of decisions of the recorder's court sitting as a magistrate, is now routed by statute and court rule to the circuit court by appeal instead of by superintending control.

We therefore adhere to case law recently delineated in People v. Polk, 59 Mich.App. 191, 229 N.W.2d 374 (1975), and hold that review of the recorder's court magistrate's decision to dismiss [73 MICHAPP 155] was properly taken by complaint for an order of superintending control in Wayne County Circuit Court. We recognize the inconsistent methods of review of the same act depending on whether the review is of an act of a district judge or of a recorder's court magistrate, see Matter of Zuppke, supra. We do not approve of such inconsistencies, but we are powerless to correct this one.

II

The circuit court erred in not granting an order of superintending control requiring the magistrate to bind the defendant's case over for trial. The evidence presented at the preliminary examination established that the defendant sat in the driver's seat of a parked car while the codefendant, also sitting in the car, halfway out the door, placed his right hand in the left side of his jacket, ordered the complainant, a passing pedestrian, to...