People v. Horne

Full title: PEOPLE v HUBERT HORNE PEOPLE v DAMON HORNE PEOPLE v KIMBERLY WILLIAMS

Court: Michigan Court of Appeals

Date published: Dec 2, 1985

147 Mich. App. 375 (Mich. Ct. App. 1985)

383 N.W.2d 208

Opinion

Docket Nos. 75839, 75840.

Decided December 2, 1985. Leave to appeal applied for in People v Kimberly Williams.

Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, John D. O'Hair, Prosecuting Attorney, Edward Reilly Wilson, Deputy Chief, Civil and Appeals, and Rosemary A. Gordon, Assistant Prosecuting Attorney, for the people.

Shirley A. Saltzman, for Hubert Horne.

Dominick J. Sorise, for Damon Horne.

State Appellate Defender (by Chari Grove), for Kimberly Williams.

Before: D.E. HOLBROOK, JR., P.J., and R.B. BURNS and K.B. GLASER,^_ JJ.

_ Circuit judge, sitting on the Court of Appeals by assignment.

D.E. HOLBROOK, JR., P.J.

The prosecutor appeals as of right from the trial court's order dismissing a one-count information against Hubert Horne individually and a five-count information against all the defendants. The charges were for possession with intent to deliver narcotics, MCL 333.7401; MSA 14.15(7401), and felony-firearm, MCL 750.227b; MSA 28.424(2). Defendants were arraigned on August 6, 1983, and preliminary examinations were set for August 17th. During the proceedings on the 17th the prosecution moved for adjournments as essential witnesses were unavailable. In Case No. 75840 the essential witness had to leave immediately for a matter currently pending in federal court. In Case No. 75839, the essential witnesses were police officers who were on vacation. Over defendants' objections the examinations were postponed and were held on August 26 and September 8. On December 16, 1983, defendants' motions to dismiss the cases as the preliminary examinations had not been held within 12 days of the arraignments were granted. On appeal the prosecutor argues that the 12 days may be extended for good cause shown, MCL 766.7; MSA 28.925, and that they had shown good cause.

In People v Weston, 413 Mich. 371, 376; 319 N.W.2d 537 (1982), the Supreme Court interpreted the 12-day rule strictly, ruling that failure to comply with the statute entitled the defendant to his discharge, although the discharge was without prejudice to the prosecutor's right to reinstate a prosecution against the defendant. See also People v Dunson, 139 Mich. App. 511, 512-513; 363 N.W.2d 16 (1984). The Supreme Court stated that it was interpreting the 12-day rule as an unqualified statutory command that the preliminary examination be held within 12 days. Weston, supra, p 376. The defendants now assert that the holding in Weston would prevent any delays or adjournments for any reason. We disagree. Weston merely requires that the preliminary examination be initially scheduled to be held within 12 days of the arraignment. People v Frank Johnson, 146 Mich. App. 429, 438; 381 N.W.2d 740 (1985). The preliminary examination may be adjourned, continued or delayed when good cause is shown. MCL 766.7; MSA 28.925.

In the instant actions the preliminary examinations were initially scheduled to be held within 12 days of the arraignments. The prosecution showed good cause and requested postponements, and reasonable delays were granted. See Johnson, supra, p 438. Accordingly the 12-day rule was not violated and the trial court erred in dismissing these actions. Thus we reverse and remand for trial in both No. 75839 and No. 75840.

Reversed and remanded.