People v. Lavan

Full title: PEOPLE v LAVAN

Court: Michigan Court of Appeals

Date published: May 1, 1974

53 Mich. App. 220 (Mich. Ct. App. 1974)

218 N.W.2d 797

Opinion

Docket No. 17429.

Decided May 1, 1974. Leave to appeal denied.

Appeal from Livingston, Paul R. Mahinske, J. Submitted Division 2 March 8, 1974, at Lansing. (Docket No. 17429.) Decided May 1, 1974. Leave to appeal denied, 392 Mich ___.

Martin P.B. Lavan was acquitted of commingling public and private funds in his capacity as justice of the peace. Defendant petitioned the trial court for costs and attorney's fees. Costs and attorney's fees awarded. Plaintiff appeals. Reversed.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Donald Ubell, Director, Prosecuting Attorneys Appellate Service, for the people.

Michael K. Hegarty, for defendant.

Before: McGREGOR, P.J., and R.B. BURNS and R.L. SMITH,^_ JJ.

_ Former circuit judge, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.

R.B. BURNS, J.

Plaintiff brought criminal charges against the defendant for commingling public and private funds in his capacity as justice of the peace in violation of MCLA 750.490; MSA 28.758. Defendant was acquitted by a jury. Defendant petitioned the trial court for costs and attorney's fees. The trial judge awarded defendant costs and attorney's fees in the amount of $15,115.20. Plaintiff appeals the award. We reverse.

Such an award is barred by the sovereign immunity doctrine unless the defendant can show statutory authority for liability in these matters. Courtright v Attorney General, 43 Mich. 411, 413; 5 N.W. 441 (1880). Defendant's first claimed sources of authority are MCLA 600.2421; MSA 27A.2421, and MCLA 600.2411; MSA 27A.2411. Both statutes are portions of the Revised Judicature Act which does not pertain to criminal matters. The title of the act clearly states that the intent of the act is to revise and consolidate Michigan civil procedure; it does not mention criminal law or procedures. In People v Stanley, 344 Mich. 530; 75 N.W.2d 39 (1956), the Court held that the Revised Judicature Act's predecessor did not apply to criminal cases.

Defendant also cites MCLA 775.21; MSA 28.1258, as authorizing the award. The statute is not directed to aid defendant's expenses; it is directed to reimburse only the county's expenses in certain prosecutions. OAG, 1967-1968, No 4588, p 49 (June 12, 1967), and OAG, 1935-1936, No 136, p 341 (December 26, 1935).

Defendant also claims that Michigan statute, MCLA 768.34; MSA 28.1057, authorizes the trial court to grant such an award. The statute merely states that an acquitted person cannot be made to pay for the administrative expenses incurred by the state in the prosecution of the case against him. It does not grant defendant the power to have his costs taxed to the state.

Reversed.

All concurred.