People v. Forrest, Docket No. 27207
| Decision Date | 09 November 1976 |
| Docket Number | Docket No. 27207 |
| Citation | 249 N.W.2d 384,72 Mich.App. 266 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Charles Willie FORREST, Defendant-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
Daniel G. Dambery, Washtenaw County Public Defender by John N. Thompson, Jr., Ann Arbor, for defendant-appellant.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William F. Delhey, Pros. Atty., for plaintiff-appellee.
Before BRONSON, P.J., and BEASLEY and ANDERSON, JR., * JJ.
Defendant, charged with delivery of heroin in violation of M.C.L.A. § 335.341; M.S.A. § 18.1070(41), appeals from a denial of his motion to dismiss on the ground that the circuit court lacks jurisdiction because of the failure of the prosecution to comply with the '180 day rule' of M.C.L.A. § 780.131; M.S.A. § 28.969(1) and M.C.L.A. § 780.133; M.S.A. § 28.969(3).
On June 21, 1974, defendant was sentenced, after a plea of guilty, to a prison term of 2 1/2 to 20 years. One week later defendant was arraigned before the circuit judge on a charge of wrongful delivery of heroin. On July 2, 1974, the Department of Corrections received custody of defendant for the prior conviction. On July 5, 1974, the pre-trial on the second charge was adjourned at the request of defense counsel until August 9, 1974, at which time the case was placed on the 'on Call' trial docket. On November 22, 1974, the people moved to consolidate defendant's case with that of another defendant. Defense counsel did not object to this motion to consolidate. The circuit judge finally ordered the two cases consolidated on March 27, 1975.
From March 29, 1975, until October 28, 1975, a period of 215 days, the people took no action on defendant's case. On the latter date, defendant moved to dismiss on the ground that the circuit court had lost jurisdiction by operation of M.C.L.A. § 780.131, Et seq.; M.S.A. § 28.969(1), Et seq. In denying the defense motion, the trial court reasoned that the people had taken good faith action within the 180 day limitation, and thereafter had proceeded promptly toward readying the case for trial, that the delay was due to the need to try other defendants incarcerated in the county jail, defendant had not shown that the delay was occasioned by the lack of readiness of the prosecution, and during the 215 day period defendant had failed to object to the lack of progress.
Defendant argues that once initial action was commenced within 180 days, the prosecution had the affirmative duty to request a trial date to resolve the charge promptly, and that any delay occasioned by the failure of the court to act cannot be permitted to defeat the intendment of the statute.
The statutes governing the disposition of untried charges against inmates are unequivocal. M.C.L.A. § 780.131; M.S.A. § 28.969(1) requires that an inmate 'shall be brought to trial within 180 days' from the date on which the Department of Corrections notifies the prosecuting attorney that defendant is serving a sentence for a prior conviction. M.C.L.A. § 780.133; M.S.A. § 28.969(3) further 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.'
The courts of this state, in interpreting these statutes, have ruled that jurisdiction is not lost if defendant does not go to trial within 180 days. The statutes require only that 'good faith action' to commerce proceedings be initiated within the six- month time limit. People v. Castelli, 370 Mich. 147, 121 N.W.2d 438 (1963), People v. Hendershot, 357 Mich. 300, 98 N.W.2d 568 (1959), People v. Herbert Smith, 34 Mich.App. 205, 191 N.W.2d 392 (1971). Thereafter, jurisdiction is lost only if the initial action is followed by 'inexcusable delay' which evidences an intent not to bring the case promptly to trial. People v. Hendershot, supra, 357 Mich. 303--304, 98 N.W.2d 568. Where the trial does not begin until well after the 180 day period has expired, the court may still have jurisdiction to proceed if the initial action was followed by reasonable diligence of the prosecution and steady progress towards trial, even if there have been significant delays not caused by the defendant. People v. Asher, 32 Mich.App. 380, 189 N.W.2d 148 (1971), People v. Downing, 31 Mich.App. 31, 187 N.W.2d 263 (1971), People v. Hill, 22 Mich.App. 91, 177 N.W.2d 220 (1970).
The principal question on this appeal is whether the delay by the trial court in setting a trial date is an excusable delay which should not be charged against the people. Prior decisions of this Court indicate that the ultimate responsibility for going forward with a case falls on the prosecution, even if delay results, for example, from the illness of the trial judge. People v. Broyer, 56 Mich.App. 685, 687, 224 N.W.2d 702 (1974), Reversed, 394 Mich. 107, 228 N.W.2d 780 (1975). In People v. Holbrook, 60 Mich.App. 628, 635, 231 N.W.2d 469 (1975), Lv. granted, 395 Mich. 752 (1975), this Court indicated that the trial judge, in setting up the calendar, cannot by inaction defeat the intendment of the speedy trial statute. In addition, the delay may not be blamed on inaction of the defendant, who is not required to demand a speedy trial in order to preserve his right to a dismissal. See People v. Haynes, 5 Mich.App. 641, 648--649, 147 N.W.2d 714 (1967).
The people argue that the unavoidable constraints of docket congestion necessitated the judge's delay in setting a trial date, since other defendants incarcerated in the county jail would also have to be tried or bailed within six months of imprisonment, M.C.L.A. § 767.38; M.S.A. § 28.978, and that to comply with all of the statutes, the prosecution would either have to release some defendants on bail or drop charges.
In discussing the defendant's constitutional right to speedy trial the U.S. Supreme Court has stated:
'A more neutral reason such as negligence or overcrowded courts should be weighted less heavily (against the government) but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant.' Barker v. Wingo, 407 U.S. 514, 531, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101, 117 (1972). 1
In interpreting the import of this language in Barker v. Wingo, courts have split on the weight to be given to court congestion in assessing responsibility for trial delay, with several jurisdictions holding that overcrowing is good cause for delay. 2
The new Federal Speedy Trial Act of 1974, which mandates a trial within 60 days of arraignment, 18 U.S.C.A. Sec. 3161(c) (Supp.1976), provides that the prosecution shall not be granted a continuance because of court congestion. 18 U.S.C.A. Sec. 3161(h)(8)(C).
In addressing the problem of congestion, the ABA Standards, Speedy Trial § 2.3(b) (1968), differentiates chronic congestion from unusual, short-term docket congestion and excludes only the latter in computing delays before trial. 3
In People v. Asher, 32 Mich.App. 380; 189 N.W.2d 148 (1971), this Court excused delays in complying with the 180-day limitation when the Detroit civil disorders of 1967 inundated the courts with thousands of additional cases and caused short-term court congestion. However, no court in this jurisdiction has ruled that chronic congestion is a valid reason for not applying the otherwise unequivocal mandate of the statutes.
A persuasive reason for not excusing chronic congestion is that any delay frustrates a purpose of the statute, to give an inmate, who has offenses pending against him, an opportunity to have all of the sentences run concurrently. See People v. Loney, 12 Mich.App. 288, 292, 162 N.W.2d 832 (1968). If a period if inaction of 215 days does not always prejudice a defendant's right to a fair and speedy trial, it certainly may impinge on the defendant's right to serve sentences concurrently.
In the case at bar the people have not made an...
To continue reading
Request your trial
-
State v. Frazier
...v. Hines, 225 N.W.2d 156, 158 (Iowa 1975); People v. Schinzel, 97 Mich.App. 508, 296 N.W.2d 85, 86-87 (1980); People v. Forrest, 72 Mich.App. 266, 249 N.W.2d 384, 387-388 (1976); State v. Mack, 89 Wash.2d 788, 576 P.2d 44, 47 (1978). See also State v. Alvarez, 189 Neb. 281, 289-290, 202 N.W......
-
Jones v. State, 90-151
...902, 906 n. 8 (9th Cir.1983); Ford, 550 F.2d at 743; People v. Bell, 669 P.2d 1381, 1386 n. 3 (Colo.1983); People v. Forrest, 72 Mich.App. 266, 273, 249 N.W.2d 384, 388 (1976); State ex rel. Hammett v. McKenzie, 596 S.W.2d 53, 58-59 (Mo.App.1980); State v. Aaron, 102 N.M. 187, 191, 692 P.2d......
-
People v. Eaton
...Id., p. 66, 395 N.W.2d 240. Delays caused by chronic docket congestion do not constitute excusable delays. People v. Forrest, 72 Mich.App. 266, 273, 249 N.W.2d 384 (1976). Furthermore, as noted by the majority, this Court has held in several previous opinions, including Wolak, supra, 153 Mi......
-
Flix v. United States, 83-1401.
...436 U.S. 340, 98 S.Ct. 1834, 56 L.Ed.2d 329 (1978); People v. Bell, 669 P.2d 1381, 1386 n. 3 (Colo. 1983); People v. Forrest, 72 Mich.App. 266, 273, 249 N.W.2d 384, 388 (1976); State ex rel. Hammett McKenzie, 596 S.W.2d 53, 58-59 (Mo.App. 1980) (en banc); State v. Aaron, 102 N.M. 187, 191, ......