People v. Schinzel, Docket No. 44156

• Decision Date: 19 May 1980
• Docket Number: Docket No. 44156
• Citation: 97 Mich.App. 508,296 N.W.2d 85
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Joseph SCHINZEL, Defendant-Appellant. 97 Mich.App. 508, 296 N.W.2d 85
• Court: Court of Appeal of Michigan — District of US

Page 85

296 N.W.2d 85

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Joseph SCHINZEL, Defendant-Appellant.

Docket No. 44156.

97 Mich.App. 508, 296 N.W.2d 85

Court of Appeals of Michigan.

May 19, 1980.

Released for Publication Sept. 24, 1980.

[97 MICHAPP 510] Gerald M. Lorence, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., E. Reilly Wilson, App. Chief, Asst. Pros. Atty., for plaintiff-appellee.

Before MAHER, P. J. and GILLIS and BRONSON, JJ.

GILLIS, Judge (On Remand).

The defendant was convicted of second-degree murder, M.C.L. § 750.317; M.S.A. § 28.549, by a Detroit Recorder's Court jury on May 23, 1977. He appealed to this Court arguing, inter alia, that the trial court lacked jurisdiction due to the asserted violation of the 180-day rule. M.C.L. § 780.131; M.S.A. § 28.969(1).

In a 2-to-1 opinion, this Court reversed the defendant's conviction and dismissed the charges against him, M.C.L. § 780.133; M.S.A. § 28.969(3), ruling that more than 180 days had elapsed from the time of the charge to the trial and that the people had not met the burden of establishing good faith action to comply with M.C.L. § 780.131; M.S.A. § 28.969(1). People v. Schinzel, 86 Mich.App. 337, 272 N.W.2d 648 (1978) (J. H. Gillis, J., dissenting).

The people thereafter sought leave to appeal to the Supreme Court. In an order dated March 13, 1979, that Court, in lieu of leave to appeal, reversed the judgment of the Court of Appeals and remanded the case to the trial court for the making of a testimonial record to determine the cause of the delay between defendant's arraignment and trial. The order further stated that "(a) fter the [97 MICHAPP 511] testimonial record is prepared, the Court of Appeals shall determine whether or not M.C.L. § 780.131; M.S.A. § 28.969(1) has been violated". People v. Schinzel, 406 Mich. 888, 276 N.W.2d 27 (1979).

Pursuant to that order, testimonial hearings were held on April 18 and 25 and May 1, 1979. The transcripts of those hearings having been made available to this Court, we proceed to determine whether the statute has been violated.

Jurisdiction is not lost if the defendant does not go to trial within 180 days. The statutes, M.C.L. § 780.131 and § 780.133, require only that good faith action to commence proceedings be initiated within the six-month time limit, People v. Castelli, 370 Mich. 147, 121 N.W.2d 438 (1963). Thereafter, jurisdiction is lost only if the initial action is followed by an "inexcusable delay". People v. Hendershot, 357 Mich. 300, 303-304, 98 N.W.2d 568 (1959).

Here, the prosecutor took sufficient good faith action to commence proceedings within the statutory period. The parties do not argue the contrary. The question presented, thus, is whether the delay which followed was such as to excuse compliance with the 180-day limitation. The answer is that it was.

The delay in the present case was occasioned by docket congestion in Detroit Recorder's Court. A delay which results from chronic docket congestion alone constitutes an inexcusable delay. ¹ People v. Forrest, 72 Mich.App. 266, 249 N.W.2d 384 (1976). A delay which results from short-term docket congestion, attributable to exceptional circumstances [97 MICHAPP 512] which hamper the normally efficient functioning of the trial court, constitutes an excusable delay. People v. Forrest, supra, at 273, 249 N.W.2d 384, ABA Standards, Speedy Trial, § 2.3(b) (1968), People v. Asher, 32 Mich.App. 380, 189 N.W.2d 148 (1971). We find that the delay here falls within the latter category.

The delay between the original trial date of November 15, 1976, and the eventual trial date of May 17, 1977, was occasioned by the decision of the Recorder's Court bench, with the approval of the Supreme Court, to return to the individual docket system of case assignments.

For the first ten months of 1976, Recorder's Court utilized the central docket system. Under that system, the examining magistrate, after binding a defendant over, would assign the case to a Recorder's Court judge for the purpose of conducting all pretrial proceedings. The case remained on that judge's docket until the parties were prepared to sign a ready-for-trial certificate. The filing of the signed certificate concluded that judge's involvement with the case. The case was then transferred to the central docket and assigned a trial date. On the trial date, the presiding judge would assign the case for trial to any judge who was then available.

The central docket system proved ineffective. In October, 1976, the decision was made to return Recorder's Court to the individual docket system. Under that system the pretrial judge retained the case until trial or other final disposition. The effect of this change in docketing systems was to transfer back to each pretrial judge those of his cases which had been transferred to the central docket. During the three-month period which followed this change, the trial judge in the instant case received back at least 400 pending cases. This influx of cases, of which the defendant's was one, caused the six-month delay in question.

[97 MICHAPP 513] On these facts, we are satisfied that the delay was an excusable one. The people have made an "affirmative showing of exceptional and unavoidable circumstances which hamper the normally efficient functioning of the trial courts". People v. Forrest, 72 Mich.App. at 273, 249 N.W.2d at 388. There was no violation of the 180-day rule. The defendant's conviction is affirmed.

MAHER, Presiding Judge (dissenting).

I must dissent from the majority's conclusion finding that the delay in bringing this defendant to trial was excusable because of the change in docketing systems in Detroit Recorder's Court.

The 180-day rule, M.C.L. § 780.131; M.S.A. § 28.969(1), provides that an inmate of a penal institution who is charged with a criminal offense "shall be brought to trial within 180 days" of receipt of the requisite notice. If trial is not had within the 180-day period, the court loses jurisdiction over the defendant. The purpose of the 180-day rule is to give the incarcerated defendant with charges pending against him the opportunity to have all of the sentences run concurrently. People v. Loney, 12 Mich.App. 288, 292, 162 N.W.2d 832 (1968).

In the case at bar, the defendant was arraigned on the warrant on April 14, 1976. A preliminary examination was held on June 6, 1976. A pretrial was held on June 11, 1976. On July 30, 1976, the trial date was set for November 15, 1976. On October 13, 1976, the prosecutor requested an adjournment of the trial until after December 1, 1976, because of the unavailability of a witness who was in the armed forces. The request was granted. Because the Recorder's Court was then switching away from a central docket system, the [97 MICHAPP 514] case was reassigned. On December 2, 1976, a new pretrial was held, at which time the judge set a trial date of May 17, 1977.

The statute does not require actual trial within the 180-day period, but only the taking of good faith action to bring the case to trial. People v. Hendershot, 357 Mich. 300, 98 N.W.2d 568 (1959), People v. Hill, 402 Mich. 272, 262 N.W.2d 641 (1978).

In People v. Asher, 32 Mich.App. 380, 189 N.W.2d 148 (1971), ...