People v. Shipp

• Decision Date: 22 May 1985
• Docket Number: Docket No. 68488
• Citation: 141 Mich.App. 610,367 N.W.2d 430
• Parties: The PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Joseph Bernard SHIPP, Defendant-Appellant. 141 Mich.App. 610, 367 N.W.2d 430
• Court: Court of Appeal of Michigan — District of US

Page 430

367 N.W.2d 430

The PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Joseph Bernard SHIPP, Defendant-Appellant.

Docket No. 68488.

141 Mich.App. 610, 367 N.W.2d 430

Court of Appeals of Michigan.

Submitted Nov. 7, 1984.

Decided April 1, 1985.

Released for Publication May 22, 1985.

[141 MICHAPP 611] Frank J. Kelley, Atty. Gen., Louis J. [141 MICHAPP 612] Caruso, Sol. Gen., Conrad J. Sindt, Pros. Atty., and Neil K. Disney, Asst. Pros. Atty., for the People.

James R. Neuhard, State Appellate Defender by Karla K. Goodman, Lansing, for defendant-appellant.

Before R.B. BURNS, P.J., and ALLEN and BROWN ^*, JJ.

PER CURIAM.

Defendant was convicted by a jury of armed robbery, M.C.L. Sec. 750.529; M.S.A. Sec. 28.797. He was acquitted of a charge of possession of a firearm during the commission of a felony, M.C.L. Sec. 750.227b; M.S.A. Sec. 28.424(2). He was sentenced to serve from 10 to 25 years in prison, with credit for time served from February 8, 1982.

Defendant first claims that the district court judge erred in binding defendant over to circuit court for trial because there was insufficient evidence presented at the preliminary examination to establish probable cause to believe defendant committed the offense.

A reviewing court will not disturb a magistrate's determination at a preliminary examination unless there is a clear abuse of discretion. People v. Doss, 406 Mich. 90, 276 N.W.2d 9 (1979). Positive proof of guilt is not required.

During the preliminary examination a state police fingerprint expert testified that he had found at least eight identifying characteristics which linked defendant's palm print to the palm print found at the scene of the crime. The expert also testified, however, that he could not list the specific identifying characteristics because he did not make a record of the markings. Defense counsel requested that the court adjourn for lunch so [141 MICHAPP 613] that he could obtain a magnifying glass with which the witness could re-examine the prints and testify as to the specific characteristics, thus allowing defense counsel to cross-examine him on those characteristics. That request was refused.

These facts do not establish a clear abuse of the examining magistrate's discretion. It is not the object of the preliminary examination to determine a defendant's guilt or innocence. Rather, if evidence conflicts or raises a reasonable doubt of a defendant's guilt, such question should be left for the jury upon trial. People v. Doss, supra, p. 103, 276 N.W.2d 9.

The only purpose of a preliminary examination is to establish whether or not there is probable cause to bind over the defendant to circuit court. Here the testimony of the fingerprint expert constituted sufficiently credible evidence to support the magistrate's conclusion that there was probable cause to believe that defendant was the perpetrator of the crime.

Defendant next contends that his conviction should be vacated and charges against him dismissed with prejudice for failure of the prosecutor to comply with Michigan's 180-day rule. M.C.L. Sec. 780.131 et seq.; M.S.A. Sec. 28.969(1) et seq.

Defendant was arrested on an unrelated charge on December 12, 1981, and lodged in the Washtenaw County Jail. The warrant for defendant's arrest in the instant case was issued on December 15, 1981. The warrant was not filed in district court until February 8, 1982, and was executed on that date. Trial began on August 3, 1982, 232 days after the warrant was issued and 175 days after the arrest.

An individual detained in a local facility, and against whom a parole hold has been filed, is not an inmate of a penal institution to whom the 180-day rule applies. People v. Sanders, 130 Mich.App. [141 MICHAPP 614] 246, 343 N.W.2d 513 (1983); People v. Wright, 128 Mich.App. 374, 340 N.W.2d 93 (1983).

Therefore, the relevant inquiry is whether defendant's parole was revoked more than 180 days before his trial commenced. People v. Rose, 132 Mich.App. 656, 659, 347 N.W.2d 774 (1984); People v. Wright, supra, 128 Mich.App. p. 378, 340 N.W.2d 93. Defendant's parole was revoked on March 19, 1982, after he was sentenced on the unrelated felony charge from Washtenaw County. Since this is less than 180 days before the commencement of trial in the instant case, we find that the 180-day rule was not violated.

Defendant also claims that the trial court erred in determining the amount of defendant's credit for time served prior to sentencing.

A defendant is entitled to credit against a sentence for time served in jail pending trial on an unrelated activity where the authorities in the case in question have placed a "hold" on the defendant. People v. Turner, 130 Mich.App. 646, 344 N.W.2d 34 (1983); People v. Major, 106 Mich.App. 226, 307 N.W.2d 451 (1981); People v. Coyle, 104 Mich.App. 636, 305 N.W.2d 275 (1981), lv. den. 415 Mich. 851 (1982). Defendant is entitled to receive credit for time served at least from the date that the Battle Creek authorities placed a "hold" on him at the Washtenaw County Jail.

Defendant asserts that he is entitled to receive credit for time served from the date on which the warrant was issued, rather than the date on which a "hold" was placed or the date he was formally arrested on the instant charges. There is a conflict in this Court on that issue. In People v. Coyle, supra, and People v. Turner, supra, this Court followed the view that a defendant is entitled to credit for time served from the time at which a "hold" could have been placed upon the defendant. That is, a defendant is entitled to credit from the [141 MICHAPP 615] date on which a warrant has been issued and the authorities know where the defendant is being held. The Battle Creek authorities knew of defendant's incarceration in the Washtenaw County Jail on December 15, 1981, the same day the warrant was issued. Thus, under this Court's view in Turner and Coyle, defendant would be entitled to credit for the time served since December 15, 1981.

The majority in People v. Major, supra, however, took the view that a defendant is entitled to credit for time served only from the date on which the "hold" was actually placed. Thus, under the holding in Major, defendant would be entitled to credit from the date on which the Battle Creek authorities actually...