People v. Zuppke, Docket No. 25774

• Citation: 72 Mich.App. 564,250 N.W.2d 127
• Decision Date: 02 December 1976
• Docket Number: Docket No. 25774
• Parties: In the Matter of the case of PEOPLE v. Linda Christine Keefe ZUPPKE, Appellant. OAKLAND COUNTY PROSECUTOR, Plaintiff-Appellee, v. 46TH DISTRICT JUDGE, Defendant. 72 Mich.App. 564, 250 N.W.2d 127
• Court: Court of Appeal of Michigan (US)

Page 127

250 N.W.2d 127

In the Matter of the case of PEOPLE v. Linda Christine Keefe ZUPPKE, Appellant.

OAKLAND COUNTY PROSECUTOR, Plaintiff-Appellee, v. 46TH DISTRICT JUDGE, Defendant.

Docket No. 25774.

72 Mich.App. 564, 250 N.W.2d 127

Court of Appeals of Michigan.

Dec. 2, 1976.

Released for Publication Feb. 15, 1977.

[72 MICHAPP 565] N. C. Deday LaRene, Detroit, for Zuppke.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., L. Brooks Patterson, Pros. Atty., for appellee.

Before QUINN, P.J., and R. B. BURNS and CAVANAGH, JJ.

QUINN, Presiding Judge.

Linda Zuppke (hereinafter defendant) was charged with delivery of a controlled substance, M.C.L.A. § 335.341(1)(b); M.S.A. § 18.1070(41)(1)(b). At the conclusion of the preliminary examination, the district judge granted defendant's motion to dismiss on the basis of entrapment. The People petitioned the circuit court for a writ of superintending control requiring that defendant be bound over for trial. The circuit court granted the writ and defendant appeals of right.

Before reaching the merits, a procedural question must be resolved. Was superintending control the appropriate method for reviewing the action of the district judge? If it was, defendant is properly in this Court by claim of appeal. If it was not, application for leave to appeal was required, M.C.L.A. § 600.8342; M.S.A. § 27A.8342.

The statute just cited provides for appeal from district court to circuit court. When that statute is [72 MICHAPP 566] considered with GCR 1963, 705, it is our opinion that the People had an appeal as of right from the district court's dismissal of this prosecution, and we so hold. We decline to follow People v. Polk, 59 Mich.App. 191, 229 N.W.2d 374 (1975), because neither the statute nor the rule above cited was considered in that case.

Two questions still remain. Is the appeal of right a plain, speedy and adequate remedy within the meaning of GCR 1963, 711.2? Our answer is yes. Is the action of the district court in dismissing a prosecution at the conclusion of the preliminary examination the type of action that falls within the 'supervisory and general control' language of Const.1963, art. 6, § 13? Our answer is no.

The appeal of right is a plain and adequate remedy in this instance, Cahill v. Fifteenth District Judge, 393 Mich. 137, 224 N.W.2d 24 (1974), notwithstanding. In Cahill, the Supreme Court stated that appeal by leave was available to resolve Cahill's individual case, but it did not provide relief to the class as a whole with reference to the district court's general policy regarding the setting of bonds and jury trials. Consequently, the civil remedy of superintending control was held correct in a class action. Only a class action complaint seeking general relief against general practices and policies of the district court charges the nature from an interlocutory appeal of a specific order to an original civil proceedings. Cahill is limited to its specific facts as a 'true' superintending control action. In the instant case there was no 'true' superintending control. The plaintiff's remedy was by appeal to the circuit court and in turn application for leave to the Court of Appeals.

Is the appeal of right a speedy remedy? We say yes. GCR 1963, 785.2 gives criminal cases precedence over civil actions. Const.1963, art. 1, § 20, guarantees an accused a speedy trial and GCR [72 MICHAPP 567] 1963, 789 provides the assurance that the constitutional right of a speedy trial will be maintained. These mandates lead us to the conclusion that circuit courts should expedite appeals from district court in criminal cases and would do so if moved to do so by either the prosecution or defense.

On the procedure question, we conclude that the People had a plain, speedy and adequate remedy by an appeal as of right. We also conclude that the action of the...