People v. Polk
| Decision Date | 25 February 1975 |
| Docket Number | No. 1,Docket No. 19743,1 |
| Citation | 229 N.W.2d 374,59 Mich.App. 191 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellant, v. John E. POLK, Defendant-Appellee |
| Court | Court of Appeal of Michigan — District of US |
Marshall C. Hill, Detroit, for plaintiff-appellant.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Div., Angelo A. Pentolino, Asst. Pros. Atty., for defendant-appellee.
Before LESINSKI, C. J., and BASHARA and KAUFMAN, JJ.
Dr. John E. Polk was arrested in the City of Detroit for violation of the Controlled Substances Act, M.C.L.A. § 335.341(1)(b); M.S.A. § 18.1070(41)(1) (b). On February 4, 1974, Recorder's Court Judge John R. Murphy, sitting as an examining magistrate, dismissed the complaint and warrant, and discharged defendant. The people filed a claim of appeal in this Court. We conclude that the claim of appeal was improvidently accepted, and the appeal must be dismissed for lack of jurisdiction.
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. See People v. Flint Municipal Judge, 383 Mich. 429, 431-432, 175 N.W.2d 750, 751-752 (1970), People v. Paille #1, 383 Mich. 605, 178 N.W.2d 469 (1970), People v. Cason, 387 Mich. 586, 198 N.W.2d 292 (1972), Wayne County Prosecuting Attorney v. Recorder's Court Judge, 27 Mich.App. 419, 183 N.W.2d 577 (1970), and Gray v. Recorder's Court Judges, 51 Mich.App. 386, 391-392, 215 N.W.2d 198, 201-202 (1974). Accordingly, this appeal must be dismissed.
We note in passing that the main question sought to be decided by the people in this appeal has been settled contrary to the position of the people in People v. Kerwin, 56 Mich.App. 483, 224 N.W.2d 113 (1974).
Appeal dismissed.
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...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). ......
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