People v. Wolfe

• Decision Date: 09 March 1987
• Docket Number: Docket No. 80869
• Citation: 156 Mich.App. 225,401 N.W.2d 283
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Gary Duane WOLFE, Defendant-Appellant. 156 Mich.App. 225, 401 N.W.2d 283
• Court: Court of Appeal of Michigan — District of US

Page 283

401 N.W.2d 283

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Gary Duane WOLFE, Defendant-Appellant.

Docket No. 80869.

156 Mich.App. 225, 401 N.W.2d 283

Court of Appeals of Michigan.

Submitted April 15, 1986.

Decided Oct. 2, 1986.

Released for Publication March 9, 1987.

[156 MICHAPP 226] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., L. Brooks Patterson, Pros. Atty., Robert C. Williams, Chief, Appellate Div., and Richard H. Browne, Asst. Pros. Atty., for the People.

Robert L. Beardslee, Birmingham, for defendant-appellant on appeal.

[156 MICHAPP 227] Before ALLEN, P.J., and MacKENZIE and SWALLOW, ^* JJ.

PER CURIAM.

Defendant appeals by leave granted from an order of the trial court denying his delayed motion to reinstate lesser charges. We affirm.

Defendant and his two codefendants, David Ovegian and Augustino Conte, were charged with first-degree murder, M.C.L. Sec. 750.316; M.S.A. Sec. 28.548, in the 1977 death of Barbara Lundsford. They were jointly tried before separate juries. On the morning of October 24, 1978, after the juries were selected, defendant and Conte joined in Ovegian's motion to reduce the first-degree murder charges to second-degree murder because first-degree murder had not been established at the preliminary examination. The trial court granted the motion, reduced the charges to second-degree murder, and denied the prosecutor's motion for a stay of proceedings. While the prosecutor's office immediately commenced an appeal to this Court, the juries for each defendant were sworn and the prosecutor made his opening statement. This closed trial proceedings for October 24. Proceedings were scheduled to resume on October 26, 1978.

By order dated October 26, 1978, this Court reversed the trial court's ruling and reinstated charges of first-degree murder against the three defendants. All three applied for leave to appeal to the Supreme Court, which denied leave by order of November 3, 1978, and subsequently denied rehearing. Trial resumed January 22, 1979.

Defendant and his two codefendants were convicted of first-degree murder. Defendant appealed his conviction as of right on double jeopardy grounds. This Court affirmed. People v. Wolfe, 110 [156 MICHAPP 228] Mich.App. 606, 313 N.W.2d 350 (1981) (Judge MacKenzie dissenting). Both codefendants' convictions were also affirmed. People v. Ovegian, unpublished opinion per curiam of the Court of Appeals, decided March 18, 1981 (Docket No. 44542), lv. den. 412 Mich. 887 (1981), and People v. Conte, 104 Mich.App. 73, 304 N.W.2d 485 (1981), aff'd, 421 Mich. 704, 365 N.W.2d 648 (1984).

On November 3, 1983, defendant filed in the circuit court a delayed motion to reinstate lesser charges, apparently in an attempt to have his conviction reduced to second-degree murder and to be resentenced. The basis of the motion was that this Court lacked the jurisdiction to hear the prosecutor's 1978 interlocutory appeal. The trial court denied the motion on February 8, 1984.

Defendant raises two issues on appeal. First, as in the trial court, he asserts that this Court lacked jurisdiction to hear the prosecutor's interlocutory appeal and order the reinstatement of the first-degree murder charge against him. Second, defendant for the first time claims error in certain jury instructions. Absent a claim of appellate ineffective assistance of counsel, a defendant may not raise nonjurisdictional trial-related matters on a second appeal. People v. Pauli, 138 Mich.App. 530, 533-534, 361 N.W.2d 359 (1984), lv. den. 422 Mich. 930 (1985). Having made no such claim, defendant's second issue is therefore not properly before us. We proceed then to the merits of defendant's jurisdictional argument.

At the time of the prosecutor's interlocutory appeal, the relevant portion of the statute governing such appeals, M.C.L. Sec. 770.12(1)(c); M.S.A. Sec. 28.1109(1)(c), provided:

"An appeal may be taken by and on behalf of the [156 MICHAPP 229] people of this state from a court of record in all criminal cases, in any of the following instances:

* * *

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

The threshold question in determining whether there was a proper prosecutorial appeal in this case is whether the statute requires that the order appealed from be entered before defendant is put in jeopardy, or whether the appeal must be taken before the defendant is put in jeopardy. We read the statute to provide that the time of the order, and not the time of the appeal, controls. The cardinal rule of statutory construction is to ascertain and give effect to the Legislature's intent. Melia v. Employment Security Comm, 346 Mich. 544, 562, 78 N.W.2d 273 (1956). In reenacting the above statute, the Legislature intended to limit the people's right to appeal, People v. Cooke, 419 Mich. 420, 430, 355 N.W.2d 88 (1984), not to make that right wholly vulnerable to defeat by trial courts. We were to read the statute to require that the time of the appeal controls the right to take an interlocutory appeal, trial courts would be absolutely empowered to...