Opinion
Docket No. 30803.
Decided September 5, 1978. Leave to appeal applied for.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Michael LaBeau, Prosecuting Attorney, and James S. Soltesz, Special Assistant Prosecuting Attorney, for the people.
James H. Davies, for defendant.
Before: T.M. BURNS, P.J., and N.J. KAUFMAN and BASHARA, JJ.
The facts are well-stated in the dissenting opinion. Contrary to that opinion, we hold that the trial court abused its discretion in denying the prosecutor's motion to enter a nolle prosequi.
We agree with the dissenting opinion that at the time the motion was made, exclusive jurisdiction of this case had vested in the circuit court. We further agree that the district court had no jurisdiction to accept defendant's guilty plea. Nevertheless, "[a] circuit judge does not enjoy supervisory power over a prosecuting attorney". Genesee Prosecutor v Genesee Circuit Judge, 391 Mich. 115, 121; 215 N.W.2d 145 (1974). There, the Supreme Court noted:
In so stating, we impugn no fault on the district court. All the parties were before it, and it did not know that the matter had already been commenced in circuit court.
"* * * once an information has been filed, it shall not be lawful for the prosecuting attorney to enter a nolle prosequi `or in any other way to discontinue or abandon the same, without stating on the record the reasons therefor and without the leave of the court having jurisdiction to try the offense charged, entered in its minutes'.[10]"
"[10] MCLA 767.29; MSA 28.969. * * *" 391 Mich at 120.
That Court further noted:
"A circuit judge * * * may reverse a magistrate's decision only for abuse of discretion. He may not properly substitute his judgment for that of the magistrate or prosecuting attorney as if he were reviewing the magistrate's decision de novo or acting in a supervisory capacity with respect to the prosecuting attorney. He may reverse or revise their decisions only if it appears on the record that they have abused the power confided to them." (Footnotes omitted.) 391 Mich at 121.
In this case, the prosecutor did state his reasons and did ask leave of the trial court. From our review of the record, we find that the prosecutor did not abuse the power confided to him. It must be remembered that "the prosecutor is the chief law enforcement officer of the county * * * ".
Genesee Prosecutor v Genesee Circuit Judge, 386 Mich. 672, 683; 194 N.W.2d 693 (1972). It may well be that the prosecutor felt that the interests of justice would be best served by having defendant plead guilty to the lesser included misdemeanor in district court. Under the dissent's reasoning, once jurisdiction vested in the circuit court, the prosecutor would be precluded from so doing.
This is not to suggest that the circuit court has no interest in this matter whatsoever. On the contrary, the circuit court still must prevent any possible miscarriage of justice. Most prominently, it should insure that no double jeopardy violation arises from the granting of a nolle prosequi motion. No such consideration presented itself here. As noted in People v Gardner, 37 Mich. App. 520, 525; 195 N.W.2d 62 (1972), lv den 387 Mich. 771 (1972), "a defendant is placed in jeopardy once the jury is impaneled and sworn". Significantly, when considering the motion, the trial court stated, "I did not swear the Jury, you'll notice". Aware of the absence of competing considerations, the trial court, therefore, abused its discretion in denying the prosecutor's motion.
Defendant's conviction is reversed and this case is remanded to the circuit court. The circuit court is directed to grant the prosecutor's motion for nolle prosequi or, with the consent of the prosecutor, to accept defendant's guilty plea on the lesser included offense.
Reversed and remanded.
Defendant appeals his conviction by a jury of larceny over $100. MCL 750.356; MSA 28.588.
On the day set for trial a variance was noted between the statutory description of the crime and the information under which defendant was charged. The case was remanded to the district court for correction of the information and a proper return. After numerous efforts, an information and return satisfactory to the trial court were filed.
Prior to calling the selected jury into the courtroom, the prosecutor moved to enter a nolle prosequi. As the basis for that motion, the prosecutor stated that defendant had entered a plea to a lesser included misdemeanor in the district court earlier that day, but subsequent to filing the information and return with the trial court. The motion was denied, and the trial proceeded.
Defendant contends that his constitutional immunity from double jeopardy barred trial on the felony charge after he entered a plea in the district court to a lesser included misdemeanor for the same criminal transaction. He, therefore, maintains that the trial court abused its discretion in denying the prosecutor's motion to enter a nolle prosequi.
The theory advanced by defendant presupposes that the guilty plea entered with the district court was effective as a conviction. However, it is my opinion that the previous filing of the information and return vested exclusive jurisdiction of the case in the circuit court. People v Hanrahan, 75 Mich. 611, 628; 42 N.W. 1124 (1889), People v White, 41 Mich. App. 370, 380; 200 N.W.2d 326 (1972). Consequently, the guilty plea was entered in a tribunal without jurisdiction and was a nullity.
Since the guilty plea was without legal effect, the trial court had a proper basis upon which to deny the prosecutor's motion for a nolle prosequi. MCL 767.29; MSA 28.969. I conclude that the trial court properly required the case to proceed to trial.
I would affirm the conviction.