People v. Pummer

• Decision Date: 01 April 1976
• Docket Number: No. 4,4
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Robert G. PUMMER, Defendant-Appellee. ,
• Court: Michigan Supreme Court

Page 78

249 N.W.2d 78

399 Mich. 326

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Robert G. PUMMER, Defendant-Appellee.

No. 4, April Term, 1976.

Supreme Court of Michigan.

Dec. 31, 1976.

James M. Justin, Asst. Pros. Atty., Jackson County Prosecutors Office, Jackson, for plaintiff-appellant.

John B. Phelps, Asst. Defender, Detroit, for defendant-appellee.

WILLIAMS, Justice.

Defendant was convicted of first degree murder, but before he was sentenced, the trial judge granted his motion for new trial. The prosecutor sought leave to appeal the order granting new trial and made specific reference to our opinion in People v. Blachura, 390 Mich. 326, 212 N.W.2d 182 (1973), which affirmed the jurisdiction of the Court of Appeals to grant leave to appeal to the prosecutor from an order granting a new trial.

After the Court of Appeals granted the prosecutor leave to appeal, the parties briefed issues relating to the propriety of the trial judge's instructions to the jury. After formal submission and oral argument, the Court of Appeals concluded that leave was improvidently granted and dismissed the appeal. The Court of Appeals relied upon People v. Martin, 59 Mich.App. 471, 229 N.W.2d 809 (1975), resurrecting M.C.L.A. § 770.12; M.S.A. § 28.1109, and found '(n)o provision is included in the statute authorizing appeals by the people from an order granting a new trial.' 61 Mich.App. 552, 233 N.W.2d 79 (1975).

Shortly thereafter we held that the prosecutor could appeal as of right an order of the circuit judge quashing an information, since it 'was a final pretrial decision of the circuit court.' Jackson County Prosecutor v. Court of Appeals, 394 Mich. 527, 232 N.W.2d 172 (1975). In so doing, we expressly overruled Martin, supra. On the same day, we entered an order of the prosecutor's application in this case, granting leave to consider whether the prosecutor could appeal from an order granting a new trial 'as of right or by leave', 394 Mich. 836 (1975).

In light of Blachura and Jackson County Prosecutor, supra, there should remain little question that appeals by the prosecutor, like those of all other litigants, are governed by M.C.L.A. § 600.308; M.S.A. § 27A.308, and rules formulated by our Court. Final judgments are appealable as of right, GCR 1963, 806.1; interlocutory orders are appealable by leave, GCR 1963, 806.2.

In People v. Pickett, 391 Mich. 305, 312, 215 N.W.2d 695, 699 (1974), we accepted our earlier-stated standard that:

'An ultimate or final judgment is not reached in a criminal case, following conviction, until the court pronounces a sentence, which leaves nothing to be done but enforcement.' People v. Fisher, 237 Mich. 504, 506, 212 N.W. 70 (1927).

Even earlier, Chief Justice Campbell stated:

'But what are known as final orders are adjudications upon motions or other applications, not involving a hearing upon pleadings and proofs, but upon other issues interlocutory or collateral, whereby some supposed right of a party is definitely cut off, or some liability fixed upon him. Usually, if not always, an order made on such a side hearing is only final if made in a certain way; whereas, if the decision had been otherwise it would have been interlocutory; while an absolute decree made in favor of either party is final. If the decision of a motion opens a case it is not generally final, unless it cuts off some acquired right under a decree. If it closes the matter and precludes any further hearing or investigation it is final.' Kingsbury v. Kingsbury, 20 Mich. 212, 215 (1870).

Clearly, an order granting a new trial is a non-final, interlocutory order. Therefore, under Blachura, the prosecutor proceeded correctly in applying for leave to appeal to the Court of Appeals.

We therefore reverse the judgment of the Court of Appeals and remand the cause for a decision on the substantive issues raised by the prosecutor.

In accordance with GCR 1963, 866, the order of this Court pursuant to the decision herein shall be entered and issued immediately upon the filing of this opinion.

FITZGERALD, RYAN, LINDEMER and COLEMAN, JJ., concur.

KAVANAGH, Chief Justice (dissenting).

Defendant was convicted by a jury of murder in the first degree in February, 1973. Prior to sentencing, defendant made a motion for a new trial, which motion was granted on November 5, 1973, the trial judge concluding that 'the instructions were of such a nature as to generally confuse the jury and to unduly emphasize murder in relation to the discussion of the other possible verdicts there instructed, as well as to de-emphasize if not make impossible, a finding of not guilty by reason of insanity * * *.'

'(I)t appears manifest injustice to the rights of the defendant may well have resulted * * * and this Court grants a new trial to the defendant.'

A new trial date of March 11, 1974 was set. The prosecution filed an application for leave to appeal to the Court of Appeals, and a motion to stay proceedings, relying on People v. Blachura, 390 Mich. 326, 212 N.W.2d 182 (1973), and GCR 1963, 806.2. The Court of Appeals granted the motion and application for leave February 4, 1974.

The case was argued January 10, 1975, and the Court of Appeals requested supplemental briefs on the question of its jurisdiction to hear the appeal. Both sides filed briefs on this question.

In a per curiam opinion dated May 30, 1975, the Court of Appeals held that leave to appeal had been improvidently granted, relying on People v. Martin, 59 Mich.App. 471, 229 N.W.2d 809 (1975). 61 Mich.App. 552, 233 N.W.2d 79 (1975).

On August 19, 1975, this Court granted the prosecution's motion to stay proceedings and granted leave to appeal 'limited to the questions of the appealability to the Court of Appeals, as of right or by leave, of a grant of a motion for a new trial in a criminal case, and whether such a grant is reviewable by superintending control.' 394 Mich. 836 (1975).

Arguments were presented on those questions in April, 1976.

We affirm.

I

We begin by stating that this case is Not controlled by People v. Blachura, supra. In Blachura, defendant was indicted on six counts of perjury. The jury trial ended with defendant being convicted on five of the six counts. Defendant moved for a new trial, and a new trial was granted on two counts, with the remaining three being dismissed with prejudice.

The prosecutor was granted leave to the Court of Appeals. Defendant was granted leave to this Court to consider "only the narrow issue of whether or not the Court of Appeals has jurisdiction' in this matter.' 390 Mich. pp. 331, 332, 212 N.W.2d p. 183.

All seven justices agreed that the answer to the question presented was in the affirmative, I.e., the Court of Appeals 'had jurisdiction in this matter.'

The two opinions written in Blachura disagree as to various aspects concerning the reasons for jurisdiction, and the limits thereto, but none of that discussion was necessary to the decision of the 'narrow issue' presented.

M.C.L.A. § 770.12; M.S.A. § 28.1109 provides in pertinent part:

'A writ of error may be taken by and on behalf of the people * * * in the following instances, to wit:

'(a) From a decision or judgment quashing or setting aside any indictment or information, or any count thereof, where such decision or judgment is based upon the invalidity or construction of the statute upon which such indictment or information is founded;

'(b) From a decision arresting a judgment of conviction or directing a judgment of acquittal for insufficiency of the indictment, where such decision is based upon the invalidity or construction of the statute upon which such indictment or information is founded;

'(c) From the decision or judgment sustaining a special plea in bar, when the defendant had not been put in jeopardy, or from any other order of the court relative to admission of evidence or proceedings had or made at any time before the defendant is put in jeopardy.'

That is the extent of the prosecution's right to appeal to the Court of Appeals. Because an order granting a motion for a new trial is not included within M.C.L.A. § 770.12; M.S.A. § 28.1109, appeal will not lie.

The prosecution argues that Const.1963, art. 6, § 10, and M.C.L.A. § 600.308; M.S.A. § 27A.308 (RJA § 308), and GCR 1963, 806.2(2) supersede the previously cited statutory limitations on prosecutorial appeals. We disagree.

Const.1963, art. 6, § 10 provides that 'The jurisdiction of the court of appeals shall be provided by law and the practice and procedure therein shall be prescribed by rules of the supreme court.'

Pursuant to this constitutional provision, M.C.L.A. § 600.308; M.S.A. § 27A.308 (RJA § 308) was enacted, providing:

'The court of appeals has jurisdiction on appeals from:

'(1) All final judgments from the circuit courts * * *

'(2) Such other judgments or interlocutory orders as the supreme court may by rule determine.'

GCR 1963, 806 provides:

'.1 Appeal as of Right. In all criminal and civil matters, an aggrieved party shall have a right to appeal from all final judgments or final orders from the Circuit Courts * * *

'.2 Appeal by Leave. The Court of Appeals may grant leave to appeal from: * * *

'(2) Any judgment, order, act or failure to act by the Circuit Courts, * * * which is not a final judgment appealable as of right.'

No contention is made that the granting of defendant's motion for a new trial is a final judgment or final order giving the prosecution a right to appeal. See Jackson County Prosecutor v. Court of Appeals, 394 Mich. 527, 232 N.W.2d 172 (1975); People v. Pickett, 391 Mich. 305, 313, 215 N.W.2d 695 (1974).

Neither GCR 1963, 806.2(2) nor RJA §§ 308 and 309 were intended to 'thoughtlessly eliminate the traditional distinction between prosecutor and defendant appeals.' People v. Blachura, supra, 390 Mich. p. 340, 212 N.W.2d p. 187 (Levin, J., concurring).

The ABA Standards Relating to Criminal Appeals, § 1.4 (Approved Draft, 1970), do not...