People v. Russell
Decision Date | 05 May 1986 |
Docket Number | Docket No. 74515 |
Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. James Charles RUSSELL, Defendant-Appellant. 149 Mich.App. 110, 385 N.W.2d 613 |
Court | Court of Appeal of Michigan — District of US |
[149 MICHAPP 111] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., William F. Delhey, Pros. Atty., Jack F. Simms, Jr., Asst. Pros. Atty., for the People.
Elizabeth L. Lutton, Ann Arbor, for defendant-appellant.
Before WAHLS, P.J., and HOLBROOK and WICKENS, * JJ.
In this case we consider the applicability of the law of the case doctrine where an intervening change in law has occurred. We hold that the trial court was bound by our prior order and that the prosecution's proper remedy was to move for rehearing in this Court or to appeal to the Supreme Court.
Pursuant to a plea and sentence bargain, defendant pled guilty on June 11, 1981, to armed robbery, M.C.L. Sec. 750.529; M.S.A. Sec. 28.797. The bargain included a promise by the court that defendant's sentence would be less than one to be given in a neighboring county. After being given a 20-to 40-year sentence in the other case, defendant was sentenced in the instant case on February 11, 1982, to a prison term of from 19 to 40 years. Defendant appealed and moved for peremptory reversal because the court had not informed him at the plea proceeding that he could not be placed on probation if he pled guilty. The prosecutor having conceded error under existing law, this Court granted defendant's motion on April 11, 1983, "on authority of GCR 1963, 785.7(1)(f), People v. Rogers, 412 Mich. 669, 316 N.W.2d 701 (1982); and People v. Greene, 116 Mich.App. 205, 323 N.W.2d 337 (1982), rev'd 414 Mich. 896 (1982)". Defendant's conviction [149 MICHAPP 112] was reversed and the cause remanded to circuit court "for further proceedings".
On April 25, 1983, the Supreme Court decided People v. Jackson, 417 Mich. 243, 334 N.W.2d 371 (1983), reversed its position taken in Rogers, supra, and concluded:
"a failure to advise a defendant pleading guilty that an offense is not probationable or of the maximum and minimum sentences which could be imposed should not be regarded as reversible error per se where there is a sentence bargain and the defendant has been sentenced in accordance with the bargain." 417 Mich. 246, 334 N.W.2d 371.
On July 5, 1983, the prosecutor in this case brought in circuit court a motion to reinstate defendant's conviction, citing Jackson, supra. Defendant responded that the court had no power to alter the order of this Court. The circuit court granted the prosecution motion, concluding that its jurisdiction had been reinstated by the remand for further proceedings.
Defendant moved for rehearing and more fully set forth his argument that the circuit court's jurisdiction was subject to the appellate court order, being the law of the case. The prosecutor responded that the court should "follow the dictates of the Supreme Court", being the current law. The hearing on defendant's motion concluded with the reinstated conviction being upheld:
An appropriate order was entered on July 28, 1983, and defendant appealed as of right.
Defendant raises three issues for review: (1) whether the trial court abused its discretion in denying defendant's motion to withdraw his plea prior to sentencing; (2) whether the trial court abused its discretion in denying defendant's motion for substituted counsel; and (3) whether the court exceeded its authority by reinstating defendant's conviction following reversal and remand by this Court. We consider the third issue first and find it dispositive of this appeal.
The law of the case doctrine has a long history in this state. See, e.g., Mynning v. The Detroit, L. & N.R. Co., 67 Mich. 677, 35 N.W. 811 (1888). The doctrine is one manifestation of the policy of finality to litigation and is a variation on the well-known rule that, if a party fails to take advantage of an opportunity to timely raise a matter, the matter is generally not preserved. In The Fort Street Union Depot Co. v. Backus, 103 Mich. 556, 61 N.W. 787 (1895), aff'd 169 U.S. 557, 18 S.Ct. 445; 42 L.Ed. 853 (1898), the Michigan Supreme Court had a [149 MICHAPP 114] case before it for the third time. The Court had previously addressed the same questions raised and had remanded for a new trial. In the case before it, the Court declined to give any further relief, concluding,
(Italics in original.) 103 Mich 557, 61 N.W. 787.
As should be clear from the Court's statement, the law of the case will apply in a subsequent proceeding in the same appellate court. See also Allen v. Michigan Bell Telephone Co., 61 Mich.App. 62, 65, 232 N.W.2d 302 (1975), lv. den. 395 Mich. 793 (1975). The doctrine is subject to almost no exception. In Mynning, supra, 67 Mich. p. 680, 35 N.W. 811, the Supreme Court stated: "[U]nless we erred in [our prior] opinion, the decision in that case must rule this." In Allen, supra, a panel of this Court concluded that, in its first ten years of existence, this Court had never refused to follow the law of the case. We are not aware of a deviation from the doctrine during the second decade of this Court's existence.
The law of the case doctrine applies with even greater force when an appellate court remands a case to an inferior tribunal. The lower court is "without power" to take action inconsistent with the judgment of the appellate court. George v. Wayne Circuit Judge, 336 Mich. 543, 544, 58 N.W.2d 915 (1953). In Lyon v. Ingham Circuit Judge, 37 Mich. 377, 378-379 (1877), Chief Justice Cooley expounded on the policy of the law of the case as it relates to a remand:
The Supreme Court has spoken on this subject more recently in People v. Whisenant, 384 Mich. 693, 702-703, 187 N.W.2d 229 (1971):
[149 MICHAPP 116] " ' "(1) The decisions on appeal of the Court of Appeals are final, except as reviewed by the Supreme Court as provided by Supreme Court rule." GCR 1963, 800.4 added October 9, 1964, effective January 1, 1965, provides:
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