People v. Nelson, Docket No. 22623

• Decision Date: 03 December 1975
• Docket Number: Docket No. 22623
• Citation: 66 Mich.App. 60,238 N.W.2d 201
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Ronald LaJuan NELSON, Defendant-Appellee. 66 Mich.App. 60, 238 N.W.2d 201
• Court: Court of Appeal of Michigan — District of US

Page 201

238 N.W.2d 201

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Ronald LaJuan NELSON, Defendant-Appellee.

Docket No. 22623.

66 Mich.App. 60, 238 N.W.2d 201

Court of Appeals of Michigan.

Dec. 3, 1975.

Released for Publication Feb. 17, 1976.

[66 MICHAPP 61] Deborah J. Gaither, Detroit, for defendant-appellee.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Patricia J. Boyle, Appellate Chief Asst. Pros. Atty., Robert A. Reuther, Asst. Pros. Atty., for plaintiff-appellant.

Before DANHOF, P.J., and McGREGOR and KAUFMAN, JJ.

McGREGOR, Judge.

On September 29, 1974, a warrant and complaint were issued against the defendant, Ronald LaJuan Nelson, charging him with one count of receiving and concealing stolen property with a value of over $100 (M.C.L.A. § 750.535; M.S.A. § 28.803), and one count of larceny from a motor vehicle (M.C.L.A. § 750.356a; M.S.A. § 28.588(1)). Defendant waived examination and was bound over for trial on the charges contained in the warrant.

On October 24, 1974, the following proceedings [66 MICHAPP 62] took place before Detroit Recorder's Court Judge Robert L. Evans:

'The Clerk: File Number 74--07588, the People of the State of Michigan vs. Ronald LaJuan Nelson, charged with receiving (and) concealing stolen property over a hundred dollars, larceny in an automobile.

'Miss Gaither: I have discussed this matter with Mr. Nelson and he indicates he wishes to waive the rights and plead guilty to the offense of attempted receiving concealing stolen property which is a two-year maximum felony offense.

'(Whereupon the defendant is sworn in by the Court Clerk.)

'The Court: What is your name?

'Defendant: Ronald Nelson.

'The Court: Your lawyer tells me you are currently serving a sentence in the State's prison, the minimum is two and a half, what is the maximum?

'Defendant: Two and a half to fifteen.

'The Court: Who gave you that?

'Defendant: Judge DelRio, about a month ago.

'The Court: The offense of attempting receiving stolen property over the value of a hundred dollars carries a maximum penalty of two and a half years. Apparently, you are already serving a minimum as much time as I could give you in maximum on this case, is that about the size of it?

'Defendant: Yes.

'The Court: The record should reflect the Court has omitted the use of Constitutional warnings in this case in the taking of the plea. He elects to dispose of this matter with a dismissal, it appearing the defendant has made an admission and is already serving more time than I could give him, this matter is dismissed.' (Emphasis added.)

On November 7, 1974, the people filed a motion to reinstate the cause and set aside the dismissal [66 MICHAPP 63] on the grounds that the trial court lacked authority to dismiss the cause, 'without motion by the prosecutor, for the reason that the defendant was convicted and sentenced on another case.' The people now appeal from the trial court's order denying this motion.

The question presented here is whether a trial court has the authority to enter a nolle prosequi on its own initiative and without the consent of the prosecutor, where there has been no finding by the trial court that either the examining magistrate or the prosecutor had abused his discretion in not himself entering the nolle prosequi.

This issue, to a large degree, involves the interpretation of M.C.L.A. § 767.29; M.S.A. § 28.969, which provides:

'It shall not hereafter be lawful for any prosecuting attorney to enter a nolle prosequi upon any indictment, or in any other way to discontinue or abandon the same, without stating on the record the reasons therefor and without the leave of the court having jurisdiction to try the offense charged, entered in its minutes.'

In People v. Curtis, 389 Mich. 698, 705--706, 209 N.W.2d 243, 247 (1973), the Supreme Court had occasion to review the history of this statute. There, the Court stated:

'A further review of the common law reveals that the nolle prosequi at that time could be retracted at any time, and must have become a Matter of record to prevent a revival of proceedings on the original indictment. It thus appears clear to the court that the forerunner of the present statute in question was enacted to protect the interests of the criminal defendant. This it did by requiring that thereafter all nolle prosequi would be entered on the record. This statute then had the effect of requiring a prosecuting attorney who [66 MICHAPP 64] entered a nolle prosequi after indictment to obtain a new indictment and begin proceedings anew if he wished to reinstate the original charge. It thus effectively overruled the old common law rules permitting a prosecutor to retract a nolle prosequi and immediately proceed to trial on the same indictment. * * * Today, as long as jeopardy has not attached, or the Statute of Limitations not run, our law permits a prosecutor to reinstate the original charge on the basis of obtaining a new indictment and thus beginning the process anew.

'It does not appear, therefore, that the Legislature in any way attempted to restrict the use of nolle prosequi in those circumstances where the prosecutor could not, solely at his discretion, reinstate the case for immediate trial.' (Emphasis in original.)

Thus, the statute, as analyzed in Curtis, supra, was not meant to significantly impair the common-law rule that only the prosecutor could exercise the power to enter a nolle prosequi. Rather, the statute was enacted primarily to protect defendants by not allowing prosecutors to exercise this power unless the reasons therefor were stated on the record and leave of the court was obtained and recorded. While the statute, by requiring the trial court's permission, does effect some infringement on the prosecutor's exclusive common-law power, the initial...