People v. Moore, Docket No. 78-4580

• Decision Date: 21 April 1980
• Docket Number: Docket No. 78-4580
• Citation: 293 N.W.2d 700,96 Mich.App. 754
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. David James MOORE, Defendant-Appellant. 96 Mich.App. 754, 293 N.W.2d 700
• Court: Court of Appeal of Michigan — District of US

Page 700

293 N.W.2d 700

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. David James MOORE, Defendant-Appellant.

Docket No. 78-4580.

96 Mich.App. 754, 293 N.W.2d 700

Court of Appeals of Michigan.

April 21, 1980.

Released for Publication July 11, 1980.

James R. Neuhard, State App. Defender by [96 MICHAPP 756] Janet M. Tooley, Asst. State App. Defender, Detroit, for defendant-appellant.

[96 MICHAPP 755] Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Michael W. LaBeau, Pros. Atty., Mitchell Hamilton Nelson, Asst. Pros. Atty., for plaintiff-appellee.

Before T. M. BURNS, P. J., and GILLIS and BASHARA, JJ.

T. M. BURNS, Presiding Judge.

Defendant, David Moore, appeals of right his June 26, 1978, jury conviction of assault with intent to do great bodily harm less than murder. M.C.L. § 750.84, M.S.A. § 28.279. On June 30, 1978, defendant pleaded guilty to a supplemental information charging him as a third-time habitual offender. M.C.L. § 769.11; M.S.A. § 28.1083. He was sentenced to a term of ten to 15 years imprisonment on August 23, 1978.

The incident out of which defendant's assault conviction arose occurred on the night of October 15, 1977. At the time of the assault, defendant, who had a prior conviction for possession of drugs, was in the custody of the state prison system and was participating in its Residential Homes Program. By virtue of his participation in this pre-parole program, defendant was permitted to serve the time remaining on his sentence outside of a state prison. Defendant argues that because he was an inmate of the state prison system at the time of this offense, the prosecutor's 254-day delay in bringing him to trial violated M.C.L. § 780.131, M.S.A. § 28.969(1), and thereby divested the circuit court of jurisdiction over the instant criminal complaint.

M.C.L. § 780.131, M.S.A. § 28.969(1), commonly referred to as the 180-day rule, provides:

"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 [96 MICHAPP 757] 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. The request shall be accompanied by a statement setting forth the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time earned, the time of parole eligibility of the prisoner and any decisions of the parole board relating to the prisoner. The written notice and statement provided herein shall be delivered by certified mail."

Failure of the prosecutor to comply with this statute can result in the dismissal with prejudice of the charges pending against the incarcerated defendant. Specifically, this remedy, as embodied in M.C.L. § 780.133, M.S.A. § 28.969(3), provides that if a prosecutor fails to bring an inmate to trial within 180 days after receiving notice of any untried warrant:

"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."

As interpreted by the courts of the state, the 180-day rule does not require that trial be concluded, or even commenced, within that period of time. Rather, the statute merely obligates a prosecutor to take good faith action on the case during the 180-day time period and to proceed promptly in readying the case for trial. People v. Castelli, [96 MICHAPP 758] 370 Mich. 147, 121 N.W.2d 438 (1963); People v. Wilder, 51 Mich.App. 280, 214 N.W.2d 749 (1974), lv. den. 394 Mich. 774 (1975); People v. Potts, 46 Mich.App. 538, 208 N.W.2d 583 (1973); People v. Asher, 32 Mich.App. 380, 189 N.W.2d 148 (1971), lv. den. 385 Mich. 767 (1971). If the prosecutor makes a good faith action to commence the proceedings, jurisdiction thereafter will be lost only if the initial action is followed by an inexcusable delay that evidences an intent not to bring the case to trial promptly. People v. Hendershot, 357 Mich. 300, 98 N.W.2d 568 (1959); People v. Forrest, 72 Mich.App. 266, 249 N.W.2d 384 (1976).

In the instant case, defendant's motion to have the assault charge dismissed because of the delay in bringing him to trial was denied by the lower court judge on the ground that the congestion of the circuit court docket provided a sufficient excuse for noncompliance with the statute. We disagree and hold that this reason is not sufficient.

In general, unexplained delays in the bringing of a case to trial are attributable to the prosecution. People v. Forrest, id. In Forrest, a delay of 215 days in the scheduling of a defendant's trial occurred. The prosecution had taken no action on the defendant's case during this time. Nonetheless, the defendant's motion to dismiss was denied. On appeal, this Court reversed:

"The principle 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. * * * In People v. Holbrook, 60 Mich.App. 628, 635, 231 N.W.2d 469 (1975), lv. granted, 395 Mich. 752 (1975), (appeal dismissed 399 Mich. 873 (1977)), this Court indicated [96 MICHAPP 759] that the trial judge, in setting up the calendar, cannot by inaction defeat the intendment of the speedy trial statute.

"In the case at bar the people have not made an affirmative showing of unavoidable delays which might justify this inaction. A mere recitation of the factor of a crowded docket, without more, cannot warrant visiting on the incarcerated defendant a longer imprisonment than might otherwise be in store. If congestion and delay result from inadequate court staffing or funding, the inevitable results of those delays must fall upon the people, who have the power to remedy court congestion." 72 Mich.App. 266, 270, 273, 249 N.W.2d 384, 386, 388.

Similarly, in People v. Schinzel, 86 Mich.App. 337, 272 N.W.2d 648 (1978), ¹ this Court held that delays in bringing a case to trial that were attributable to the judiciary were chargeable against the prosecution. The Schinzel Court noted that the duty of the prosecutor to adequately explain a delay in bringing a case to trial was not met where the proffered reason for the delay concerned administrative procedures of the trial court. See also, People v. Petrov, 75 Mich.App. 532, 255 N.W.2d 673 (1977) (holding that a delay in trial on account of a congested court docket is chargeable against the prosecution where a defendant claims that his constitutional guarantee of a speedy trial has been violated).

Thus, we cannot affirm the lower court's ruling on defendant's motion to dismiss. We are reluctant,[96 MICHAPP 760] however, to state that the prosecutor cannot adequately explain his delay in bringing defendant to trial. Therefore, we remand this case and instruct that an evidentiary hearing be held to determine the reason for the delay in bringing defendant to trial.

In order to dispose of this issue in all of its respects, we address an issue likely to arise on remand. In People v. Loney, 12 Mich.App. 288, 292, 162 N.W.2d 832, 834 (1968), a panel of this Court held that the 180-day rule:

"was intended to give the inmate, who had pending offenses not yet tried, an opportunity to have the sentences run concurrently consistent with the principle of law disfavoring accumulations of sentences. This purpose, however, does not apply in the...