People v. McCoy

• Decision Date: 19 April 1977
• Docket Number: Docket No. 28552
• Citation: 75 Mich.App. 164,254 N.W.2d 829
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Thomas W. McCOY, Defendant-Appellant, and William H. Lanphear and James A. Boreham, Defendants. 75 Mich.App. 164, 254 N.W.2d 829
• Court: Court of Appeal of Michigan — District of US

Page 829

254 N.W.2d 829

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Thomas W. McCOY, Defendant-Appellant and William H. Lanphear and James A. Boreham, Defendants.

Docket No. 28552.

75 Mich.App. 164, 254 N.W.2d 829

Court of Appeals of Michigan.

April 19, 1977.

Rehearing Denied June 3, 1977.

Released for Publication June 28, 1977.

[75 MICHAPP 166] Spelman, Taglia, Meek & Lagoni by Paul A. Taglia, St. Joseph, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., John A. Smietanka, Pros. Atty., St. Joseph, Donald A. Johnston, III, Sp. Pros. Atty., Grand Rapids, for plaintiff-appellee.

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

BEASLEY, Judge.

On June 9, 1975, defendant McCoy and two others were charged in a three-count complaint with conspiracy to obtain money over $100.00 dollars by false pretenses, contrary to M.C.L.A. § 750.157a; M.S.A. § 28.354(1) and M.C.L.A. § 750.218; M.S.A. § 28.415. Following a two day preliminary examination, the district court dismissed all three counts against defendant McCoy, ruling in part that the evidence presented by the plaintiff failed to establish that the charged crime was committed by defendant McCoy. Plaintiff appealed this ruling to the circuit court, which on March 12, 1976, reversed the district court's ruling and ordered the charges against defendant McCoy reinstated. The circuit court predicated its decision upon the ground that the district judge had erroneously applied the law regarding conspiracy and false pretenses to the facts as they were found by the district judge at the preliminary examination. From this adverse decision, defendant McCoy sought leave to appeal in this Court. This case is now before us, leave having been granted on July 7, 1976.

[75 MICHAPP 167] The threshold issue relates to procedure and jurisdiction. Defendant-appellant asserts that the prosecution was not entitled to "appeal" the ruling of the district judge dismissing the charges, but was entitled only to test the ruling by a civil action for superintending control against the district judge. Defendant preserved this question by a motion to dismiss the prosecutor's appeal, which motion was denied by the circuit judge.

Defendant's claim rests upon People v. Polk, 59 Mich.App. 191, 229 N.W.2d 374 (1975), and the cases cited therein and, particularly, upon People v. Flint Municipal Judge, 383 Mich. 429, 175 N.W.2d 750 (1970). In Polk, which was a per curiam opinion, this court flatly stated:

"The proper and exclusive remedy for review by the people of a magistrate's determination to discharge an accused at the conclusion of a preliminary examination is by means of filing an original civil complaint for an order of superintending control, which must be filed in circuit court." (Emphasis added.) 59 Mich.App. 191, 192, 229 N.W.2d 374, 357.

In Flint Municipal Judge, supra, the Supreme Court said:

"No argument is made here as to the proper office of superintending control as a means of reviewing the discretion of an examining magistrate. The order of superintending control embraces the functions of the former writ of mandamus. GCR 1963, 711.3(2).

"Superintending control, like mandamus, lies to require the magistrate to perform a function where the magistrate has a clear legal duty to act.

"The superintending court does not substitute its judgment or discretion for that of the magistrate; neither does it act directly in the premises. Rather it examines the record made before the magistrate to determine whether there was such an abuse of discretion[75 MICHAPP 168] as would amount to a failure to perform a clear legal duty; and in such case, the superintending court orders the magistrate to perform his duty.

"The process is not, properly speaking, an appeal. It is rather a whole new lawsuit, with different parties and different purposes. People v. Yeotis (People v. Flint Municipal Judge) is not a criminal case, but is rather an original civil complaint designed to require the defendant municipal judge to perform a clear legal duty.

"Original complaints for superintending control against municipal judges, district judges, and probate judges should be directed to the circuit courts." 383 Mich. 429, 431-32, 175 N.W.2d 750, 751.

Taken literally, the foregoing cases appear to support defendant's position that the only remedy of the prosecution was a writ of superintending control; that the prosecution lacked the right of direct appeal of the district judge's finding. If so, defendant is entitled to reversal of the circuit judge's order and affirmation of the district judge's dismissal of the proceeding. ¹

[75 MICHAPP 169] In the within case, in March, 1976, the circuit judge filed a carefully prepared opinion concluding that the district judge drew an erroneous conclusion of law from the facts he found. In that opinion, the circuit judge did not come to grips with the procedural issue, merely stating that the matter came before him on appeal taken by the prosecutor. However, after defendant, on April 15, 1976, filed a motion under Polk to dismiss on the grounds of an alleged lack of jurisdiction, on April 23, 1976, the circuit judge made a supplemental order, holding in part as follows:

"A. That the act of the examining magistrate * * * at the conclusion of the preliminary examination * * * in ordering that all charges be dismissed, the Defendants discharged and their bonds cancelled, was a final judgment of the District Court, appealable as of right by the People to the Berrien County Circuit Court in accordance with and by authority of MSA 27A.8342; M.C.L.A. 600.8342, GCR 1963, 705, and Jackson County Prosecutor v. Court of Appeals, 394 Mich. 527 (; 232 N.W.2d 172) (1975);

"B. That the standard for review in the circuit court of a magistrate's determination to discharge an accused at the conclusion of a preliminary examination is identical irrespective of whether such review is sought by means of an appeal of right by the people or through the filing by the people of an original civil complaint in circuit court for an order of superintending control, and the parties, through their Attorneys of record, did in fact properly address themselves to the issues and scope of the proper standard in their Briefs and arguments [75 MICHAPP 170] and the Court did, in fact, meet and abide by the proper standard in its written Opinion filed herein;" ² We agree with the result reached by the circuit court, even though we refrain from approving all that was said in arriving at that decision. Recent opinions of the Michigan Supreme Court demonstrate that this area of the law is far from settled. See, e. g., People v. Pummer, 399 Mich. 326, 249 N.W.2d 78 (1976); Jackson County Prosecutor v. Court of Appeals, 394 Mich. 527, 232 N.W.2d 172 (1975); People v. Blachura, 390 Mich. 326, 212 N.W.2d 182 (1973). However, this Court has declined to follow Polk, supra, the Court of Appeals decision relied upon by the defendant. Oakland County Prosecutor v. Forty-Sixth District Judge, 72 Mich.App. 564, 250 N.W.2d 127 (1976). As is indicated by the title of that case, the people sought a writ of superintending control in order to review the granting by a district judge of a defendant's motion to dismiss based on entrapment. The circuit court granted the writ and the defendant appealed as of right to this Court. The opinion of this Court rejects both the procedure advocated by defendant herein and the case upon which he relies:

"Was superintending control the appropriate method for reviewing the action of the district judge? If it was, defendant is properly in this Court by claim of appeal. [75 MICHAPP 171] If it was not, application for leave to appeal was required, MCLA 600.8342; MSA 27A.8342.

"The statute just cited provides for appeal from district court to circuit court. When that statute is considered with GCR 1963, 705, it is our opinion that the people had an appeal as of right from the district court's dismissal of this prosecution, and we so hold. We decline to follow People v. Polk, 59 Mich.App. 191, 229 N.W.2d 374 (1975), because neither the statute nor the rule above cited was considered in that case.

"Since superintending control in circuit court was inappropriate, the application for leave to appeal to this Court should have been employed instead of claim of appeal, MCLA 600.8342, supra. However, in order to dispose of the case on the merits, we treat the claim of appeal as an application for leave to appeal and grant it." 72 Mich.App. at 565-567, 250 N.W.2d at 128. ³

In view of the applicable precedents and statutes we conclude in this case that:

1. The circuit judge was correct in believing that he must accept the district judge's findings of fact and that there was sufficient evidence to support such findings of fact.

[75 MICHAPP 172] 2. The conclusion of the circuit judge that he could review the district judge's rulings as to the law was correct in the sense that it is the type of question which traditionally and statutorily may be appealed by a prosecutor and is not the type that a prosecutor is precluded from appealing.

3. Insofar as Polk purports to hold that the exclusive and only way a prosecutor may appeal a district judge's finding dismissing a case after preliminary examination is by a civil suit for superintending control against the district judge, Polk is contrary to prevailing law in this state.

4. Under these circumstances, the prosecution was entitled to appeal to the circuit court for review of the district judge's ruling, providing that jeopardy had not attached.

Assuming then that the prosecutor may appeal, the central issue is whether the circuit court correctly ruled that the district court abused its discretion in dismissing the charges against defendant McCoy. See People v. Smith, 39 Mich.App. 337, 197 N.W.2d 528 (1972); People v. Flint Municipal Judge, supra; People v. Karcher, 322 Mich. 158, 33 N.W.2d 744 (1948); ...