People v. Loney
| Decision Date | 28 June 1968 |
| Docket Number | Docket No. 3209,No. 3,3 |
| Citation | 12 Mich.App. 288,162 N.W.2d 832 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Edward N. LONEY, Defendant-Appellant |
| Court | Court of Appeal of Michigan — District of US |
Rex P. O'Connor, O'Connor & McNamara, Ionia, for defendant-appellant.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, Walter M. Marks, Pros. Atty., Ionia County, Ionia, for plaintiff-appellee.
Before BURNS, P.J., and QUINN and ZIEM, * JJ.
On December 22, 1965, a complaint was signed and a warrant issued in Ionia County charging the defendant with escaping from prison. At the time, defendant was serving a pre-existing sentence of from 8 to 30 years imposed on February 21, 1963, by the Genesee county circuit court. In circuit court, 2 days prior to trial in April, 1966, a motion for Nolle prosequi was granted. On April 20, 1966, a new complaint and warrant were issued charging attempted escape from prison. C.L.S.1961, § 750.193 (Stat.Ann.1962 Rev § 28.390). Defendant was tried and convicted of attempted escape in the Ionia county circuit court on August 31, 1966, and was sentenced to a minimum term of 2 years and a maximum term of 3 years. This latter sentence, in accordance with the statute, was imposed as a consecutive sentence to commence at the termination of the sentence then being served.
The principal issues presented are whether the passage of 252 days from December 22, 1965, to August 31, 1966, bars this prosecution under the 180-day statute and whether the statute applies to offenses committed by persons who are already inmates at the time the offense is committed. A further issue of whether the trial judge abused his discretion in his ruling on the people's motion for Nolle prosequi is also presented.
In the instant case, it was not until March, 1966, that the prosecutor learned that at the time of the alleged escape the appellant was still on state property when apprehended. The prosecutor then, rightly or wrongly, but in apparent good faith, elected not to amend the information, but chose instead to proceed by Nolle prosequi and the issuance of a new complaint and warrant alleging attempted escape.
The 180-day statute, insofar as it is material, reads as follows:
Section 1 of the act provides, in part:
'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. * * *'
Section 3 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.' C.L.S.1961, §§ 780.131, 780.133 133 (Stat.Ann.1968 Cum.Supp. §§ 28.969(1), 28.969(3)).
In People v. Hendershot (1959), 357 Mich. 300, 98 N.W.2d 568, the Supreme Court held that the statutory requirement, that the accused 'shall be brought to trial' within 180 days, does not require the actual trial within that time, but only the taking of good faith action to start the proceedings in motion. This was reaffirmed in People v. Castelli, 370 Mich. 147, 153, 121 N.W.2d 438.
In the instant case, the 180 days had not expired when the prosecutor took action to start the proceedings in motion.
...
To continue reading
Request your trial
-
People v. Smith, Docket No. 89414
...or might be imposed. We are now persuaded that Woodruff was incorrectly decided, and that the view expressed in People v. Loney, 12 Mich.App. 288, 292, 162 N.W.2d 832 (1968), 4 that the 180-day rule does not apply in such a case, is correct: 5 "The purpose of the statute is clear. It was in......
-
People v. Williams
...whether the 180-day rule applies to defendants facing mandatory consecutive sentencing upon conviction of the pending charge. In Loney, supra, the Court of Appeals held that the 180-day rule applies only when the pending charge would allow concurrent The purpose of the statute is clear. It ......
-
People v. Asher, Docket No. 5673
...the 180-day period was held to be such good faith action as to satisfy the mandates of the statute. Similarly, in People v. Loney (1968), 12 Mich.App. 288, 162 N.W.2d 832, we held that the prosecutor's moving for Nolle prosequi and issuing a new complaint and warrant within the statutory pe......
-
People v. Mendoza
...the period of incarceration. In making that ruling, the trial court relied upon this Court's decision in People v. [108 MICHAPP 745] Loney, 12 Mich.App. 288, 292, 162 N.W.2d 832 (1968). On April 21, 1980, Loney was rejected by a panel of this Court. People v. Moore, 96 Mich.App. 754, 760-76......