People v. Downing, Docket Nos. 9399

• Decision Date: 19 February 1971
• Docket Number: No. 1,9404,Docket Nos. 9399,1
• Citation: 187 N.W.2d 263,31 Mich.App. 31
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Everett Lee DOWNING, Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. John BALLARD, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 263

187 N.W.2d 263

31 Mich.App. 31

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Everett Lee DOWNING, Defendant-Appellant.

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. John BALLARD, Defendant-Appellant.

Docket Nos. 9399, 9404.

Court of Appeals of Michigan, Division No. 1.

Feb. 19, 1971.

Released for Publications June 8, 1971.

Leave to Appeal Denied Oct. 19, 1971.

Charles Burke, Detroit, for defendant-appellant Downing.

Gerald S. Surowiec, Detroit, for defendant-appellant Ballard.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Div., Robert A. Reuther, Asst. Pros. Atty., for plaintiff-appellee.

Before V. J. BRENNAN, P.J., and FITZGERAND and LEVIN, JJ.

FITZGERALD, Judge.

Everett Lee Downing and John Ballard, codefendants charged with first-degree murder ¹, were both allowed during trial to enter pleas of guilty to manslaughter. ² Defendants contend that their convictions are void because of non-compliance with the 180-day rule of M.C.L.A. § 780.131 (Stat.Ann.1970 Cum.Supp. § 28.969(1)):

'Whenever the department of corrections shall receive notice that there is pending in this state any untried warrant, indictment, information or complaint setting forth against any inmate of a penal institution of this state a criminal offense for which a prison sentence might be imposed upon conviction, such inmate shall be brought to trial within 180 days after the department of corrections shall cause to be delivered to the prosecuting attorney of the county in which such warrant, indictment, information or complaint is pending written notice of the place of imprisonment of such inmate and a request for final disposition of such warrant, indictment, information or complaint.'

Defendants say this necessitates reversal of their convictions pursuant to M.C.L.A. § 780.133 (Stat.Ann.1970 Cum.Supp. § 28.969(3)), which provides:

'In the event that, within the time limitation set forth in section 1 of this act, action is not commenced on the matter for which request for disposition was made, no court of this state shall any longer have jurisdiction thereof, nor shall the untried warrant, indictment, information or complaint be of any further force or effect, and the court shall enter an order dismissing the same with prejudice.'

Defendant Downing's period of incarceration during which an untried warrant was outstanding consisted of 395 days. Defendant Ballard's period of incarceration during which an untried warrant was outstanding consisted of 279 days.

In People v. Farmer (1969), 16 Mich.App. 148, 151, 167 N.W.2d 597, 598, a claim was asserted under the 180-day rule and the Court of Appeals reversed the conviction, noting:

'In the present case 272 days had elapsed Without any action having been taken. * * * The statutory procedures were not following and no good cause was shown for such delay.' (Emphasis supplied.)

In People v. Parker (1970), 21 Mich.App. 399, 404, 175 N.W.2d 879, 882, this Court, reversing another conviction on the basis of the 180-day rule, said:

'In the instant case it is clear that the 180-day rule was not met. No action whatsoever was taken by the prosecutor following defendant's imprisonment on the second charge on March 31, 1967, until March 13, 1968. The prosecutor offers this Court no excuse for the delay of nearly a year.' (Emphasis supplied.)

All that is required is that there be a good faith initiation of the prosecution within 180 days and reasonable diligence thereafter in proceeding with the case. People v. Hendershot (1959), 357 Mich. 300, 98 N.W.2d 568; People v. Loney (1968), 12 Mich.App. 288, 162 N.W.2d 832. It is not necessary that the trial itself occur within the 180 days. People v. Williams (1968), 9 Mich.App. 676,...