People v. Jones

Citation489 N.W.2d 106,195 Mich.App. 65
Decision Date10 July 1992
Docket NumberDocket No. 133064
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. Tywayne Donodus JONES, Defendant-Appellant.
CourtCourt of Appeal of Michigan (US)

Frank J. Kelley, Atty. Gen., Gay Secor Hardy, Sol. Gen., Tony Tague, Pros. Atty., and Kevin A. Lynch, Sr. Asst. Pros. Atty., for the People.

Balgooyen Law Offices, P.C. by Gerald W. Gibbs, Muskegon, for defendant-appellant on appeal.

Before HOOD, P.J., and SHEPHERD and SANBORN, * JJ.

PER CURIAM.

Defendant appeals as of right his jury conviction of receiving and concealing stolen property with a value exceeding $100, M.C.L. Sec. 750.535; M.S.A. Sec. 28.803, and larceny with safe damage, M.C.L. Sec. 750.531; M.S.A. Sec. 28.799. Defendant was sentenced, after pleading guilty as a third-felony offender, to concurrent terms of imprisonment of five to ten years and five to twenty years, respectively. We affirm.

Defendant first argues that the trial court did not have jurisdiction to try the case because he had been denied a preliminary examination. In Michigan, the right to a preliminary examination is solely a creation of the Legislature and is not a procedure that is based on the constitution. People v. Johnson, 427 Mich. 98, 103, 398 N.W.2d 219 (1986) (opinion of Boyle, J.); People v. Hall, 435 Mich. 599, 603, 460 N.W.2d 520 (1990). The right to a preliminary examination derives from M.C.L. Sec. 767.42(1); M.S.A. Sec. 28.982(1), which states in part:

An information shall not be filed against any person for a felony unless such person has had a preliminary examination therefor, as provided by law, before an examining magistrate, unless that person waives his statutory right to an examination.

In this case, after defendant was charged with breaking and entering an occupied dwelling with intent to commit larceny, M.C.L. Sec. 750.110; M.S.A. Sec. 28.305, and larceny with safe damage, a preliminary examination was held and defendant was bound over on those charges to circuit court for a trial set for September 12, 1989. On the day of the trial, the trial court granted the prosecution's motion for an order of nolle prosequi and dismissed the case without prejudice because a key prosecution witness could not be located. On the same day, a new complaint and warrant were issued with regard to the same charges, and shortly thereafter a second preliminary examination was scheduled. Because defendant failed to appear for the scheduled preliminary examination, it was rescheduled for March 12, 1990. On that date, defendant moved to quash the information unless the prosecution could produce new evidence showing probable cause to bind him over to circuit court. Because it was undisputed that the evidence to be offered was the same as before, the district judge decided that there was no reason to hold another preliminary examination, and defendant was once again bound over for trial on the same charges.

We find that defendant waived his statutory right to a preliminary examination. Defendant does not dispute the fact that probable cause that he committed the crimes with which he was charged was determined at the first preliminary examination. Upon entry of the order of nolle prosequi, the prosecution obtained a new complaint and warrant and proceeded to a preliminary examination with regard to the reissued case, pursuant to M.C.L. Sec. 767.29; M.S.A. Sec. 28.969. People v. Ostafin, 112 Mich.App. 712, 715-716, 317 N.W.2d 235 (1982). At the scheduled preliminary examination, defendant did not dispute the fact that the evidence presented at the first preliminary examination was sufficient to determine probable cause to bind him over. Moreover, at no time before, during, or even after trial until this appeal, did defendant object to the failure to provide a preliminary examination. See People v. Alexander, 72 Mich.App. 91, 98, 249 N.W.2d 307 (1976). Accordingly, we find that defendant waived his right to a preliminary examination under M.C.L. Sec. 767.42(1); M.S.A. Sec. 28.982(1). Furthermore, the statute gives the defendant the right to a preliminary examination for the felony with which he was charged. That is precisely what defendant had.

Defendant also argues that the trial court abused its discretion in denying him a bench trial. We disagree. M.C.L. Sec. 763.3(1); M.S.A. Sec. 28.856(1) provides in part:

In all criminal cases arising in the courts of this state the defendant may, with the consent of the prosecutor and approval by the court, waive a determination of the facts by a jury and elect to be tried before the court without a jury. Except in cases of minor offenses, the waiver and election by a...

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