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In People v Williams, 9 Mich. App. 676, 686-687; 158 N.W.2d 42 (1968), this Court explained that "the key word is `untried.' As long as a charge, once formally lodge, remains untried, it is part of an untried warrant, indictment, information or complaint".
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Docket No. 3,529.
Decided March 31, 1968. Leave to appeal denied February 11, 1969. See 381 Mich. 800.
Appeal from Oakland; Beasley (William R.), J. Submitted Division 2 October 2, 1967, at Lansing. (Docket No. 3,529.) Decided March 31, 1968. Leave to appeal denied February 11, 1969. See 381 Mich. 800.
Melvin R. Williams was charged with selling marijuana, heroin, and cocaine. Information was quashed for failure of people to comply with statutory requirements. The people appeal. Reversed.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, S. Jerome Bronson, Prosecuting Attorney, and Robert W. Leutheuser, Chief Appellate Counsel, for the people.
Campbell Lee, for defendant.
The trial judge concluded that there was a failure to comply with the requirements of CLS 1961, § 780.131 (Stat Ann 1968 Cum Supp § 28.969[1]) and CLS 1961, § 780.133 (Stat Ann 1968 Cum Supp § 28.969[3]) (see footnote 3) which require that whenever the department of corrections receives notice of an untried warrant, indictment, information, or complaint affecting an inmate, the inmate shall be brought to trial within 180 days after the department delivers to the prosecuting attorney notice of the inmate's imprisonment and a request for final disposition of the untried charges.
"See 1. 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 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." (Emphasis supplied.)
Defendant was arrested on a complaint and warrant dated April 1, 1966, charging that he sold or dispensed marijuana (count 1), heroin (count 2), and cocaine (count 3) in violation of PA 1937, No 343 (CL 1948, § 335.152 [Stat Ann 1957 Rev § 18.1122]). The offenses were alleged to have been committed at different times.
On April 22, 1966, the defendant was examined and bound over for trial on all three counts. On May 12, 1966, the defendant was arraigned on the third count, cocaine, and counts 1 and 2 were dismissed at the people's request. Also on May 12, 1966, a hearing was held on defendant's application for a writ of habeas corpus. The writ was denied and the defendant was returned to the State prison for a hearing upon alleged violations of his parole.
An agreed statement of facts entered into by the parties contains the following: "It is to be noted that defense counsel seasonably objected several times to the original information on the grounds that Mr. Williams was, in fact, charged with three separate and distinguishable criminal offenses, and that the three offenses should be served [severed] into three separate informations, each containing one charge." See 1 Gillespie, Michigan Criminal Law and Procedure, §§ 371, 372.
On June 14, 1966, the trial date of June 16, 1966, was adjourned at defense counsel's request. On July 21, 1966, defendant was not ready for a trial scheduled to begin on July 27, 1966, and the matter was again adjourned.
On August 22, 1966, the defendant was taken before a circuit judge. The defendant had become dissatisfied with one lawyer he retained and that lawyer had been permitted to withdraw. Defendant retained a second lawyer who, at the conclusion of the August 22 hearing, was allowed to withdraw. The court then assigned counsel to the defendant as an indigent.
On September 23, 1966, the matter again came up and the defendant waived trial by jury.
On November 22, 1966, the prosecuting attorney moved for an order of nolle prosequi as to count 3, stating that the people's expert was no longer able to identify the sample substance as cocaine. The order was entered.
On November 23, 1966, the people filed an amended information charging defendant with dispensing heroin (count 1) and possession of heroin (count 2). On December 7, 1966, defendant moved to quash the information on the ground that the requirements of the statutory provision previously mentioned had not been complied with and that the 180-day period therein prescribed had expired without the defendant having been brought to trial.
The trial judge quashed the information on March 7, 1967, pursuant to CLS 1961, § 780.133 (Stat Ann 1965 Cum Supp § 28.969[3]) on the basis of our opinion in People v. Haynes (1967), 5 Mich. App. 641.
"Sec 3. 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."
The people ask us to reconsider Haynes, and assert that the defendant should not be permitted to profit from his "dilatory tactics." Defendant counters that Haynes was correctly decided, that the Haynes rule was here properly applied by the trial judge, and that even if it were to be found that defendant delayed commencement of trial on the cocaine count and the statute could not properly be relied on by the defendant as to the cocaine count, the defendant did not delay trial on the heroin charge at one time dismissed at the request of the people and, therefore, any defendant's delay in respect to the cocaine charge should not affect the matter.
We find it unnecessary to consider whether Haynes was correctly decided because we do not think that this case presents the question that divided our Court in Haynes. Haynes pled guilty to one charge, and was thereupon sentenced and delivered to the State prison. The issue of compliance with the statutory requirement concerned an untried charge which was pending at the time that Haynes was convicted on his plea of guilty. In Haynes, our Court, led by Judge GILLIS, Judge QUINN dissenting, ruled that a prosecutor will be deemed to have received notice from the department of corrections even though there was no formal notice from the department in a case where both the department and the prosecutor were aware of the facts and there had been inaction on the untried charge throughout the 180-day period. In Haynes the prosecutor obtained a number of adjournments of which Haynes was not aware.
In formulating the statutory language the legislature sought to protect those who face multiple charges against undue delay in trial when they are held 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. In re Carey (1964), 372 Mich. 378, 380.
E.g., PA 1927, No 175, chap 8, § 7a, as added by PA 1954, No 100 (CLS 1961, § 768.7a [Stat Ann 1954 Rev § 28.1030(1)]) providing that in the discretion of the court a sentence imposed for crime committed while in prison shall commence upon expiration of the prison term the offender was serving at the time of the commission of the crime.
The defendant in this case had not been convicted of any of the multiple charges lodged against him when he was confined in State prison. He was returned to the State prison as an alleged parole violator.
The statute in question was considered by our Supreme Court in People v. Hendershot (1959), 357 Mich. 300, 304, and People v. Castelli (1963), 370 Mich. 147. In Hendershot the defendant was arraigned, his preliminary examination was held, and he was bound over and a date for a sanity hearing set within the 180-day period. The Supreme Court declared (p 304):
"If, as here, apparent good-faith action is taken [by the people] well within the period and the people proceed promptly and with dispatch thereafter toward readying the case for trial, the condition of the statute for the court's retention of jurisdiction is met. When the people have moved the case to the point of readiness for trial and stand ready for trial within the 180-day period, defendant's delaying motions, carrying the matter beyond that period before the trial can occur, may not be said to have brought the statute into operation, barring trial thereafter."
Later, in Castelli, the Court explained that Hendershot "held that the statutory requirement that the accused `shall be brought to trial' within 180 days does not require actual trial within that time, but only the taking of good faith action to start the proceedings in motion." (p 153) In Castelli the Court rejected a defense based on alleged non-compliance with the 180-day requirement. It there appeared that the warrant on the untried charge had been issued after the defendant entered the State prison, and that within the 180-day period the defendant had been brought back to the charging county and the preliminary examination held.
The attorney general has expressed the following views:
"As we construe this statute, we do not believe that the phrase, `brought to trial,' used in section 1 of the act, and the phrase, `action is not commenced,' used in section 3 of the act, are in conflict or that they are incompatible." and "We believe the legislature contemplated that the `action' to be commenced, as required by section 3, must be such as to result in the inmate being `brought to trial,' as required by section 1." 2 OAG 1958, No 3124, pp 47, 48.
It is manifest on the record before us that the defendant in this case could not have properly raised the statutory defense as to the cocaine count. The people took good-faith action to start the cocaine count proceedings in motion and proceeded promptly and with dispatch toward readying that case for trial.
However, the cocaine count was nolle prossed. Defendant asserts that even if the people proceeded diligently on the cocaine count the people's failure to have done anything at all to bring the heroin count to trial within the 180-day period prescribed by the statute requires dismissal with prejudice as to the untried heroin charge.
The unstated assumption of the statute relied on by the defendant is that a prosecutor may properly try less than all the multiple offenses facing an accused and after such trial proceed against the accused on some or all the remaining charges. The statutory provision here relied on cannot become applicable prior to incarceration in the State prison and, thus, had defendant remained in the county jail either because bond had been denied or because he could not make bond set by the court, or had he been freed on bond while awaiting trial the defense asserted here would not be applicable.
"The legislative intent and meaning in its use of the term `brought to trial' is to be gathered from the entire act." People v. Hendershot, supra, p 303.
That which is required to be "brought to trial" within 180 days is "any untried warrant, indictment, information or complaint" pending against the inmate. Defendant must therefore concede, in order to assert the defense, that the heroin charge was part of an "untried warrant, indictment, information or complaint" even though count 1 (marijuana) and count 2 ( heroin) were dismissed on May 12, 1966, at the people's request, shortly before the defendant was returned to the State prison as a parole violator.
We do not think that the operative effect of the statute depends on the technical posture of the case — e.g., whether the untried charge has been "dismissed" — but rather on the substance of the matter. Here, although counts 1 and 2 had been formally dismissed shortly before defendant was returned to State prison, the people could bring those charges again and, thus, in practical effect and in substance, the heroin count was still pending "untried" when defendant was returned to State prison.
We add that even though counts 1 and 2 of the information were formally dismissed the court retained jurisdiction of the defendant on the complaint, which was thus an "untried complaint." See Mentor v. People (1874), 30 Mich. 91, where, on the defendant's motion, the information was quashed with leave to the people to file a new information. The defendant stood mute to the new information, and on appeal of the conviction contended the trial court had no jurisdiction over him on the new information. The defendant argued that when the earlier information was quashed the court lost jurisdiction over him, and the court could only reacquire jurisdiction upon filing of a new complaint. The Court rejected the defendant's argument and declared (pp 92, 93):
The complaint alleged the commission of 3 separate offenses. While the agreed statement of facts sets forth that the defendant objected to the original information as duplicitous, it is not claimed here that any such objection was voiced to the complaint. Further, counts 1 and 2 of the complaint were not dismissed. We add that any such dismissal would not have been equivalent to a trial of such counts, so that such counts would, nevertheless, have remained untried charges that had once been formally lodged against the defendant and could thus be viewed as part of an "untried" complaint.
It has been said that, even if a warrant charged 2 separate and distinct crimes and one preliminary examination was conducted as to both offenses, the objection of duplicity could not be raised since the reason for the rule against duplicity — i.e., a defendant should not be subjected to trial for 2 separate and distinct offenses at one time — would not be applicable. People v. Shuler (1904), 136 Mich. 161, 166. We also note that the information "is not predicated upon the complaint or the examination upon which the warrant issues, but it is presumed to have been framed with reference to the facts disclosed at the examination which succeeds the arrest." People v. Kahler (1892), 93 Mich. 625, 627. The statute does not prescribe any form that the complaint shall take; the primary function of the complaint is to move the magistrate to consider and determine whether a warrant shall issue, and the justification for issuance of the warrant is not supposed necessarily to appear in the complaint. Turner v. People (1876), 33 Mich. 363. The complaint does not "fix and control the after-proceedings." People v. Kahler, supra. See, also, People v. Pichette (1897), 111 Mich. 461, 462. Compare People v. Norman (1968), 9 Mich. App. 647. It may even be, having in mind the function of a complaint, that a complaint may not be "dismissed" — either a warrant issues on the complaint, or it does not; and if a warrant improperly issues, the warrant may be attacked, but not the complaint. A dismissal by the magistrate of a complaint before issuance of a warrant might properly be viewed as a refusal to issue a warrant, rather than a "dismissal" of the complaint itself.
In a case ( e.g., misdemeanor) where the complaint and warrant take the place of an information, they are subject to objection on the ground of duplicity. People v. Jackman (1893), 96 Mich. 269, 274; Tiedke v. Saginaw (1880), 43 Mich. 64.
"This information being quashed on the defendant's motion, as no information, the case stood in all respects as if none had before been filed.
"The complaint before the justice, his warrant, commitment and return were still of the same force and virtue as the basis for an information as if that which had been quashed had never been presented. And it would have been a simple outrage upon public justice to have discharged the prisoner, without giving the prosecutor an opportunity to file an information upon the offense for which the prisoner stood committed.
"The court had lost no jurisdiction of the prisoner by the void or defective information which had been quashed."
The principle so stated in Mentor v. People, supra, was applied in Dimmers v. Hillsdale Circuit Judge (1939), 289 Mich. 482, and People v. Miklovich (1965), 375 Mich. 536, 539.
We would reject an argument by the people that the dismissal of counts 1 and 2 on May 12, 1966, shortly before defendant's return to State prison, prevented the statute from ever becoming operative as to counts 1 and 2, and such counts could thus be tried years hence, irrespective of total inaction in the meantime on the part of the people. Likewise, the dismissal of counts 1 and 2 is not a factor to be weighed in defendant's favor for the purposes of this statute. In the phrase "untried warrant, indictment, information or complaint" the key word is "untried." As long as a charge, once formally lodged, remains untried, it is part of an untried warrant, indictment, information or complaint. Thus, for the purposes of the statute before us, all 3 counts of the original information filed against the defendant remained, even after the dismissal of counts 1 and 2, part of an "untried warrant, indictment, information or complaint."
The "untried warrant, indictment, information or complaint" or, more simply, the untried complaint charging the defendant was "brought to trial", for the purpose of this statute, as to all 3 charges, when good-faith action was taken to bring the cocaine count to trial. Although the 3 offenses originally charged concern possession or dispensing of different drugs on different occasions, at the preliminary examination probable cause was found to have been established principally on the basis of the testimony of one witness. Upon the preliminary examination, the defendant had been bound over for trial on all 3 counts. All that remained was to try the defendant. An underlying premise of the statute is that a prosecutor may properly try less than all the multiple offenses and after such trial proceed against the accused on the remaining charges. The statute does not require that trial dates have been set within the 180-day period for all 3 charges set forth in the "untried warrant, indictment, information or complaint" here before us.
We conclude that in this case the people have discharged the statutory obligation of good-faith and prompt action in prosecuting the untried charges, applicable both to a defendant returned to State prison as a parole violator and one confined in State prison upon conviction of one or more, but less than all, the multiple charges lodged against him. If, upon conclusion of the trial of the heroin counts set forth in the new information, the people do not in compliance with the statute in good faith bring the untried marijuana count to trial, the defendant may avail himself of the remedy set forth in section 3 of the act (see footnote 3). The salutary objectives of the act can be accomplished in harmony with the orderly administration of justice.
Defendant also asserts that the delay in proceeding to try the heroin count deprived him of his constitutional right to a speedy trial. Const 1963, art 1, § 20. Our Supreme Court has held that a defendant's failure to make a formal demand on the record for a speedy trial requires rejection of a defense predicated on that constitutional requirement. People v. Duncan (1964), 373 Mich. 650; People v. Miklovich (1965), 375 Mich. 536. The defendant in this case failed to make such a demand.
Reversed.
McGREGOR, P.J., concurred with LEVIN, J.
Judge QUINN concurs on the basis CLS 1961, § 780.131 (Stat Ann 1965 Cum Supp § 28.969[1]) has no application to this case for the reasons expressed in his dissenting opinion in People v. Haynes (1967), 5 Mich. App. 641.