Opinion
Docket No. 8985.
Decided February 24, 1971.
Appeal from Kent, John H. Vander Wal, J. Submitted Division 3 February 2, 1971, at Grand Rapids. (Docket No. 8985.) Decided February 24, 1971.
James R.D. Ledbetter was convicted of larceny by conversion over $100. Defendant appeals. Reversed.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, James K. Miller, Prosecuting Attorney, and Donald A. Johnston, III, Chief Appellate Attorney, for the people.
Robert E. Gersch, for defendant on appeal.
Before: FITZGERALD, P.J., and V.J. BRENNAN and T.M. BURNS, JJ.
Defendant was charged with larceny and larceny by conversion or embezzlement.
MCLA § 750.356 (Stat Ann 1970 Cum Supp § 28.588).
MCLA § 750.362 (Stat Ann 1954 Rev § 28.594).
On May 28, 1969, defendant reported for work at a filling station where he worked as an attendant on the late shift. Trial testimony indicates that he was given $80 in bills and coins as "starting money". Sometime after midnight on May 29, 1969, defendant left the station unoccupied and unsecured and rode into town with friends, Mr. Smith and Miss Gasco. He did not return to the station. Customers alerted the police concerning the "open station". The police locked the station doors. Shortly after 7 a.m., the station manager arrived and audited the station, read the pumps, counted the oil, and studied the shift report of the preceding attendant. He determined that $168.30 of the station's money was missing. Mr. Smith and Miss Gasco testified that defendant admitted stealing the station's money. Defendant's girl friend, when contacted by a police detective, turned in over $115. At the close of the people's proofs, the larceny charge was dismissed. Defendant was found guilty of larceny by conversion over $100 by the jury.
Twelve issues are presented for review alleging reversible prejudice and improper use of judicial discretion by the trial court.
On appeal, defendant asks the following question:
Did the trial judge commit reversible error when, in response to defendant's motion for psychiatric examination, he ordered a locally prominent psychiatrist to examine defendant and to submit a report stating whether a diagnostic commitment to the Department of Mental Health was required pursuant to MCLA § 767.27a (Stat Ann 1970 Cum Supp § 28.966[11]); and, when this report was filed and indicated that diagnostic commitment was not required, he ordered the trial to commence as scheduled?
The following quotation clearly states the rule and establishes the precedent which we follow:
"The court rule promulgated in 1969 (GCR 1963, 786) now dictates the proper method for determination of a defendant's competency to stand trial. There can be no argument as to retroactivity of a court rule and accordingly we hold that the actions of the trial court at the time of defendant's 1968 trial satisfied the statute. The 1969 court rule now prescribes the approved method and must be followed when the question of defendant's competency to stand trial is properly raised." (Emphasis supplied.) People v. Kerridge (1969), 20 Mich. App. 184, 191; People v. Hartford (1970), 25 Mich. App. 200, 202.
The alleged crime in the instant case and the criminal procedures related thereto all occurred after May 15, 1969, when GCR 1963, 786, became prospectively applicable. The motion for psychiatric examination was properly filed by written motion before trial. The strong rule enunciated in the Kerridge case and adopted by this Court in the Hartford decision declares that where there is a showing that defendant may be incompetent, the court shall commit him to a forensic center for psychiatric examination. Failure to comply by the trial court results in reversible error.
Reversal on this ground obviates further consideration and decision on defendant's 11 other allegations of error.
Reversed and remanded.