Opinion
Docket No. 56943.
Decided November 18, 1982.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Edward J. Grant, Prosecuting Attorney, and Brian E. Thiede, Assistant Prosecuting Attorney, for the people.
Myron E. Sanderson, for defendant on appeal.
Defendant appeals as of right his conviction for assaulting a prison employee, MCL 750.197c; MSA 28.394(3). He was sentenced to serve a term of from 2-1/2 to 4 years in prison which was to be served consecutively to the sentence he was then serving.
Defendant claims that his conviction must be reversed because the trial court lost jurisdiction over him when a trial was not commenced within 180 days as required by MCL 780.131; MSA 28.969(1).
It is clear that the statute does apply to defendant despite the fact that he was incarcerated at the time that he committed the offense. People v Woodruff, 414 Mich. 130; 323 N.W.2d 923 (1982). Since the first four months of delay which occurred following the expiration of the 180-day period was occasioned by normal docket congestion, and since that delay must be attributed to the prosecution, we are compelled to conclude that the trial court lost jurisdiction to try defendant. People v Moore, 96 Mich. App. 754, 759; 293 N.W.2d 700 (1980).
Defendant's conviction is reversed.
I respectfully dissent. The majority opinion reverses defendant's conviction on grounds that the 180-day statute attributes delay occasioned by normal docket congestion to the prosecution. I find that conclusion unwarranted under the terms of the statute.
MCL 780.133, et seq.; MSA 28.969(3), et seq., provides that if within 180 days "action is not commenced on the matter" the trial court shall lose jurisdiction. This unambiguous language was interpreted by the Supreme Court to also require dismissal of charges if, following preliminary action taken within the first 180 days, there is an "inexcusable delay" by the prosecution and "an evident intent not to bring the case to trial promptly". People v Hendershot, 357 Mich. 300, 303; 98 N.W.2d 568 (1959). The line of cases of this Court which find the standard satisfied because of normal docket congestion, in my opinion, stand on an erroneous premise.
In People v Holbrook, 60 Mich. App. 628; 231 N.W.2d 469 (1975), app dis 399 Mich. 873 (1977), a panel of this Court held that delay by the trial court is not attributable to the prosecution. As stated by the Court:
"The prosecution did everything in its power in this case to bring the case on for trial short of committing contempt of court or arrogating to itself the right to docket its own cases." Holbrook, supra, p 633.
The Court, referring to the trial court's action in delaying the case and dismissing the charges against defendant, made the following statement:
"What is to the point is that a trial court setting its own calendar call cannot by its own inaction defeat the plain intendment of the statute." Holbrook, supra, p 635.
Though the holding in Holbrook, supra, is to the contrary, the above statement presumably has formed the genisis of the rule that delays by the trial court are attributable to the prosecution for the purposes of the 180-day statute.
In People v Forrest, 72 Mich. App. 266; 249 N.W.2d 384 (1976), this Court held that delays by the trial court are to be attributed to the prosecution. The panel of this Court in Forrest, as authority for their holding, cited People v Broyer, 56 Mich. App. 685; 224 N.W.2d 702 (1974), rev'd 394 Mich. 107 (1975); People v Holbrook, supra, and People v Haynes, 5 Mich. App. 641; 147 N.W.2d 714 (1967), lv den 379 Mich. 789 (1967). As noted previously, the Holbrook case holds that delays by a trial court are not attributable to the prosecution. Both Broyer and Haynes are decided on the constitutional principle of right to a speedy trial, Const 1908, art 2, § 19; Const 1963, art 1, § 20, and not the 180-day statute. Similarly, in People v Schinzel (On Remand), 97 Mich. App. 508; 296 N.W.2d 85 (1980), lv den 411 Mich. 982 (1981), the Court found that the trial court's delays were attributable to the prosecution and cited Forrest, supra. See, also, People v Moore, 96 Mich. App. 754; 293 N.W.2d 700 (1980), relying on the Forrest, Holbrook, and Schinzel cases and People v Petrov, 75 Mich. App. 532; 255 N.W.2d 673 (1977), a speedy trial case.
The right to a speedy trial, predicated upon constitutional principles, is compromised when there is an unreasonable delay which results in prejudice to the defendant. See Barker v Wingo, 407 U.S. 514; 92 S Ct 2182; 33 L Ed 2d 101 (1972), and People v Chism, 390 Mich. 104; 211 N.W.2d 193 (1973). Prejudice is also not assumed until the delay exceeds 18 months. People v Collins, 388 Mich. 680; 202 N.W.2d 769 (1972). Under constitutional analysis, delay is only relevant as it relates to prejudice to the defendant and whether the court or prosecutor caused the delay is immaterial. The 180-day statute, instead, focuses on prosecutorial delay and prejudice is immaterial. However, under that statute, if preliminary action is taken within the first 180 days, as it was in this case, then inexcusable prosecutorial delay and an evident intent not to bring the case to trial promptly are necessary precedents to statutory divestment of jurisdiction. Hendershot, supra.
Our Supreme Court recently in People v Woodruff, 414 Mich. 130; 323 N.W.2d 923 (1982), declared that the unambiguous reach of the 180-day statute needed no interpretation. Affording such construction to this record, I am unable to find any "inexcusable delay" or "evident intent not to bring the case to trial promptly" attributable to the prosecution as a result of normal docket congestion. In view of Woodruff, I see no reason to further extend the statute so as to include speedy trial protections that are not expressed therein.
I further find the remaining claims of appellant to be without merit.
I would affirm.