Opinion
Docket No. 48379.
Decided July 7, 1981. Leave to appeal applied for.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, and A. George Best, II, Assistant Prosecuting Attorney, for the people.
Edwards Edwards, for defendant on appeal.
Defendant pled guilty to embezzlement by an agent, in violation of MCL 750.174; MSA 28.371. This crime was committed during a period when defendant had escaped from furlough status for a previous embezzlement conviction. For this second crime, defendant was sentenced in Detroit Recorder's Court for imprisonment for a term of from 6 to 10 years. Defendant appeals this conviction as of right.
While on furlough status, defendant resided in a "halfway house" and was subject to rules and regulations of the Department of Corrections. During this time, defendant was still considered a prisoner. See People v Mayes, 95 Mich. App. 188; 290 N.W.2d 119 (1980). See also People v Smith (On Rehearing), 89 Mich. App. 478; 280 N.W.2d 862 (1979).
The single issue raised by defendant's appeal is a violation of the 180-day rule of MCL 780.131; MSA 28.969(1). Defendant's claim is that the passage of over 200 days from his return to custody to his trial violated the 180-day rule and prevented the court from exercising jurisdiction, according to MCL 780.133; MSA 28.969(3).
MCL 780.131; MSA 28.969(1) provides:
"Whenever the department of corrections shall receive notice that there is pending in this state any untried warrant, indictment, information or complaint setting forth against any inmate of a penal institution of this state a criminal offense for which a prison sentence might be imposed upon conviction, such inmate shall be brought to trial within 180 days after the department of corrections shall cause to be delivered to the prosecuting attorney of the county in which such warrant, indictment, information or complaint is pending written notice of the place of imprisonment of such inmate and a request for final disposition of such warrant, indictment, information or complaint. The request shall be accompanied by a statement setting forth the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time earned, the time of the parole eligibility of the prisoner and any decisions of the parole board relating to the prisoner. The written notice and statement provided herein shall be delivered by certified mail."
MCL 780.133; MSA 28.969(3) provides:
"In the event that, within the time limitation set forth in section 1 of this act, action is not commenced on the matter for which request for disposition was made, no court of this state shall any longer have jurisdiction thereof, nor shall the untried warrant, indictment, information or complaint be of any further force or effect, and the court shall enter an order dismissing the same with prejudice."
While People v Moore, 96 Mich. App. 754; 293 N.W.2d 700 (1980), held that the 180-day rule specifically applies to offenses committed during incarceration, we are convinced that People v Loney, 12 Mich. App. 288; 162 N.W.2d 832 (1968), and People v Ewing, 101 Mich. App. 51; 301 N.W.2d 8 (1980), represent the better view.
Where a person incarcerated in a penal institution is convicted and sentenced for committing a crime while incarcerated or during escape or an attempt to escape, the term of sentence imposed for a crime so committed shall commence at the expiration of the sentence which the person is serving. MCL 768.7a(1); MSA 28.1030(1)(1). People v Loney, supra, expressed the opinion that the 180-day statute did not apply to the offenses committed while in prison, for which offenses mandatory consecutive sentences are to be served, reasoning:
MCL 768.7a(1); MSA 28.1030(1)(1) provides:
"A person who is incarcerated in a penal or reformatory institution in this state, or who escapes from that institution, and who commits a crime during that incarceration or escape which is punishable by imprisonment in a penal or reformatory institution in this state shall, upon conviction thereof, be subject to sentence therefor in the manner provided by law for such crimes. The term of sentence imposed for the crime shall commence at the expiration of the term or terms of sentence which the person is serving or has become liable to serve in a penal or reformatory institution in this state."
"`In formulating the statutory language, the legislature sought to protect those who face multiple charges against undue delay in trial when they are jailed in State prison while untried charges are still pending. The statute seeks to secure to those serving sentences in a State prison the enjoyment of the rule of law which in the absence of a statute otherwise providing, prohibits imposition of a sentence to commence upon completion or expiration of another sentence.' People v Williams, 9 Mich. App. 676, 682 (1968), citing In re Carey, 372 Mich. 378 (1964).
"The purpose of the statute is clear. It was intended to give the inmate, who had pending offenses not yet tried, an opportunity to have the sentences run concurrently consistent with the principle of law disfavoring accumulations of sentences. This purpose, however, does not apply in the instance of a new offense committed after imprisonment, nor where the statute, as in the case of an escape or attempted escape, sets up a mandatory consecutive sentence. The legislature was not concerning itself with the need for dispatch in the handling of a charge brought against an inmate for offenses committed while in prison.
* * *
"For the foregoing reasons, it is the opinion of this Court that the 180-day statute does not and was not intended to apply to offenses committed while in prison and for which offenses mandatory consecutive sentences are provided." People v Loney, supra, 292-293.
The case of People v Hill, 402 Mich. 272; 262 N.W.2d 641 (1978), is distinguishable because there the charges arose out of incidents which occurred prior to the defendant's incarceration.
Furthermore, even if we were to assume for purposes of argument that People v Moore, supra, should be followed, we would not dismiss but would remand for an evidentiary hearing concerning the reason for the delay.
Affirmed.
I respectfully dissent. I would hold that the passage of over 200 days from the time of defendant's return to custody until his trial violated the 180-day rule and deprived the trial court of jurisdiction. MCL 780.131, 780.133; MSA 28.969(1), 28.969(3).
The prosecution does not really dispute defendant's chronology of the instant case. The people contend, however, and the majority agrees, that the 180-day rule is inapplicable to the present factual situation. They rely on People v Loney, 12 Mich. App. 288; 162 N.W.2d 832 (1968), for the proposition that the rule was not intended to apply to cases where consecutive sentences are mandatory. See also People v Ewing, 101 Mich. App. 51; 301 N.W.2d 8 (1980).
I believe that the authoritative interpretation of the 180-day rule is in People v Hill, 402 Mich. 272; 262 N.W.2d 641 (1978). Neither Hill nor the statute makes an exception for cases in which consecutive sentences are prescribed.
Moreover, I find People v Moore, 96 Mich. App. 754; 293 N.W.2d 700 (1980), to be the better interpretation of the applicability of the 180-day rule. In Moore, this Court stated that the primary purpose of the judiciary when interpreting statutes is to ascertain and give effect to legislative intent. However, a statute must admit of some ambiguity before the courts of this state will be required to examine the legislative intent behind it in an attempt to ascertain its meaning. Thus, where the language of a statute is unambiguous, the legislative intent is obvious and must be determined accordingly. The Court then held, and I find this holding most persuasive as to the instant case, that it found no ambiguity in the 180-day rule that would permit an exception to application of its plain language. Therefore, even if it were reasonable and otherwise valid to distinguish between inmates who commit crimes prior to incarceration and those who commit them subsequently, this distinction is one which the Legislature and not the judiciary should make. The Court then held that a defendant who commits a crime while in prison is entitled to the protection of the 180-day rule. Id., 760-762. I agree. If the Legislature does not intend a broad application of the statute or if it wishes to make exceptions to its application, it must so state before this Court will override the plain language of the statute.
The facts of the present case fit squarely within this decision and, I believe, squarely within the 180-day rule. While defendant was an inmate of the Department of Corrections, there was unexplained and inexcusable inaction as to his pending embezzlement charge from September 11, 1978, to April 23, 1979, a period of 224 days. There is no claim or showing that the defendant contributed to this delay. The people did not show unavoidable circumstances which make trying this case within the statutory period impossible. This Court in People v Forrest, 72 Mich. App. 266, 273; 249 N.W.2d 384 (1976), stated:
"We hold that, if the defendant has not contributed to the delay, a period of otherwise unexplained inaction in excess of 180 days in the prosecution of a charge pending against an inmate is per se a violation of the statute, unless the people make an affirmative showing of exceptional and unavoidable circumstances which hamper the normally efficient functioning of the trial courts."
I would also find a violation of the 180-day rule in defendant's case and reverse his conviction.