People v. Ostafin, Docket No. 54767

• Decision Date: 31 March 1982
• Docket Number: Docket No. 54767
• Citation: 112 Mich.App. 712,317 N.W.2d 235
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Michael J. OSTAFIN, Defendant-Appellant. 112 Mich.App. 712, 317 N.W.2d 235
• Court: Court of Appeal of Michigan — District of US

Page 235

317 N.W.2d 235

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Michael J. OSTAFIN, Defendant-Appellant.

Docket No. 54767.

112 Mich.App. 712, 317 N.W.2d 235

Court of Appeals of Michigan.

Submitted Oct. 6, 1981.

Decided Jan. 11, 1982.

Released for Publication March 31, 1982.

[112 MICHAPP 713] Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., James Gregart, Prosecuting Atty. and James A. Christopherson, Asst. Prosecuting Atty., for the people.

Earl W. Dalzell, Kalamazoo, for defendant-appellant on appeal.

[112 MICHAPP 714] Before MAHER, P. J., and HOLBROOK, and ROBINSON, ^* JJ.

MAHER, Judge.

Defendant was convicted of two counts of armed robbery, M.C.L. Sec. 750.529; M.S.A. Sec. 28.797, after a jury trial in Kalamazoo County Circuit Court. On June 7, 1977, he was sentenced to concurrent terms of 2 1/2 to 5 years on each count.

On June 15, 1977, defendant filed a motion and a notice of hearing to have the court set aside his conviction, vacate his sentence, grant a dismissal or grant a new trial. A hearing was held on July 22, 1977, and the circuit court apparently indicated that it would order a transcript for the purpose of ruling on the motion. It is unclear whether this transcript was ever actually requested by the court.

More than two years later, on October 10, 1979, defendant filed a motion to set a time for the hearing on the motion to set aside conviction, vacate sentence, grant a dismissal or grant a new trial. On October 10, 1979, a hearing on the motion was held before a different circuit judge. The hearing resulted in a six-week adjournment to allow the parties time to locate the transcript. On December 10, 1979, the circuit judge ordered another such adjournment because the transcript was still unavailable and because reconstruction of the testimony was not feasible.

Finally, on January 15, 1980, the circuit judge, acknowledging that the transcript could not be located despite diligent efforts to obtain it, set aside defendant's conviction and granted him a new trial. On the same day, defendant was rearraigned[112 MICHAPP 715] on the same information, entered a plea of not guilty, and was released on bond.

On March 13, 1980, the prosecution filed a petition and order of nolle prosequi because the principal prosecution witness was unavailable and because a "trial by transcript" was not possible until and unless the transcript was located. The circuit court entered an order of nolle prosequi on March 24, 1980, and defendant's bond was cancelled. At this point defendant was a free man; there were no charges outstanding against him, and his conviction had been set aside by the circuit court.

On May 27, 1980, after locating the transcript, the prosecution filed a motion to reinstate the conviction. Sixty-five days had elapsed since the circuit court had entered the order of nolle prosequi, and 132 days had elapsed since defendant had been granted a new trial and rearraigned. Defendant filed, in response, a motion entitled Special Appearance for the Purpose of Questioning Jurisdiction. On June 16, 1980, the circuit court denied defendant's motion regarding jurisdiction and granted the motion to reinstate the conviction. Defendant then filed motions for reconsideration of the reinstatement of his conviction and for reconsideration of his motion regarding jurisdiction. These motions were denied on September 30, 1980. On the same day the court also set aside the order of nolle prosequi and the order granting a new trial. Defendant now appeals as of right.

Defendant contends that once an order of nolle prosequi has been entered, the prosecution must proceed, if at all, by reinstituting proceedings anew, through reindictment or a new information. M.C.L. Sec. 767.29; M.S.A. Sec. 28.969 provides:

"It shall not hereafter be lawful for any prosecuting [112 MICHAPP 716] 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, 706, 209 N.W.2d 243 (1973), the Supreme Court discussed the effect of an order of nolle prosequi under this statute:

"It thus appears clear * * * 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 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."

Clearly, then, defendant is correct in his assertion that the prosecution must begin proceedings anew after entry of an order of nolle prosequi, and may not merely seek to reinstate a previous indictment or conviction. However, the prosecution contends that the trial court properly granted relief from the order of nolle prosequi under GCR 1963, 528.3, which provides in part:

".3 Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud; Etc. On motion and upon [112 MICHAPP 717] such terms as are just, the court may relieve a party or his legal representative from a final judgment, order or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; * * *."

The prosecution insists that the nolle prosequi order was entered by "mistake", and that therefore the circuit court had the power to set aside the order. We concede that if a...