People v. Parker , 21 Mich. App. 399 ( 1970 )

21 Mich. App. 399 (1970) 175 N.W.2d 879

PEOPLE
v.
PARKER

Docket No. 6,155.

Michigan Court of Appeals.

Decided February 3, 1970.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Samuel J. Torina, Chief Appellate Lawyer, and Arthur N. Bishop, Assistant Prosecuting Attorney, for the people.

Max E. Klayman, for defendant on appeal.

Before: LESINSKI, C.J., and J.H. GILLIS and QUINN, JJ.

LESINSKI, C.J.

Defendant Charles Parker was found guilty of attempted larceny in a building^[1] following acceptance of his plea of guilty. Defendant brings this appeal.

On March 10, 1966, an adding machine was stolen from a store in Livonia. Two days later a complaint was issued against defendant and another man. On June 14, 1966, defendant was arraigned and a plea of not guilty was entered upon his standing mute.

Defendant was released on bond. While out on bond defendant was arrested for another crime, tried, convicted and sentenced to a term of two to five years. On March 31, 1967, he entered Jackson prison to serve that sentence.

On March 13, 1968, the prosecutor petitioned for, and was granted, a writ of habeas corpus to have defendant released from Jackson to stand trial for the theft of the adding machine. Defendant pleaded guilty to the lesser included offense of attempted larceny in a building on April 19, 1968.

The sole issue raised on this appeal is the applicability of the "180-day" rule contained in MCLA § 780.131 (Stat Ann 1969 Cum Supp § 28.969[1]). The first section of the statute reads:

"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."

The policy behind this statute has been set forth in prior cases. In People v. Williams (1968), 9 Mich App 676, 682, this Court stated:

"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."

See, also, People v. Loney (1968), 12 Mich App 288.^[2] The statute also has the effect of insuring a speedy trial under conditions where defendant is unable to maintain personal contact with his witnesses.

The key element required of the prosecutor under the statute to keep the case alive is continued good-faith action. As stated in People v. Hendershot (1959), 357 Mich 300, 303, 304:

"Clearly, if no action is taken and no trial occurs within 180 days, the statute applies. If some preliminary step or action is taken, followed by inexcusable delay beyond the 180-day period and an evident intent not to bring the case to trial promptly, the statute opens the door to a finding by the court that good-faith action was not commenced as contemplated by § 3, thus requiring dismissal. The statute does not require the action to be commenced so early within the 180-day period as to insure trial or completion of trial within that period. If, as here, apparent good-faith action is taken 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."

See, also, People v. Castelli (1963), 370 Mich 147.

In the instant case it is clear that the 180-day rule was not met. No action whatsoever was taken by the prosecutor following defendant's imprisonment on the second charge on March 31, 1967, until March 13, 1968.^[3] The prosecutor offers this Court no excuse for the delay of nearly a year.

The prosecutor, however, does argue that the issue has been waived both by defendant's failure to raise the issue below and by his pleading to the information. We disagree.

The third section of the "180-day" rule statute (MCLA § 780.133 [Stat Ann 1969 Cum Supp § 28.969 (3)]) reads:

"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 clear import of this section is to deny jurisdiction to the courts where the provisions of § 1 are not met.

In Nichols v. Houghton Circuit Judge (1915), 185 Mich 654, the Court was faced with a question concerning the granting by a trial court of a new trial on its own motion in a criminal case, at a time when the defendant had lost the right to file such a motion. At p 665, the Court stated, with regard to the fact that the prosecutor therein had previously consented to the motion: "This Court has never held that jurisdiction of the subject-matter can be conferred by consent or waiver."^[4] And, continuing at p 666:^[5]

"The authority is uniform that jurisdiction of the subject-matter cannot be conferred by consent of the parties, or by want of objection, upon a court, where, by statute, it has none. 1 Bishop's New Criminal Procedure, § 123, stated the rule as follows:

"`Jurisdiction comes solely from the law, in no degree from consent of litigants. So that neither consent nor anything else can authorize a court to act in a cause outside the sphere which the law has ordained for it.'"

See, also, 1 Gillespie, Mich Criminal Law & Procedure (2d ed), § 60.

Defendant was incapable of conferring on the trial court the jurisdiction which had been removed by statute. The trial court was without jurisdiction to accept the guilty plea and the untried complaint, upon which the case was based, was void at the time of the plea. The plea was, therefore, without effect and cannot act as an estoppel. By the terms of the statute the only proper action for the trial court was to enter an order dismissing the case with prejudice.

The prosecutor also argues "that no notification to the involved department was received prior to the time defendant was brought back to [Wayne County] * * * March 13, 1968, for trial on the matter now at bar."^[6] The argument is based on the following language of the statute:

"Whenever the department of corrections shall receive notice that there is pending in this state any untried warrant * * * against any inmate * * * 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, * * * is pending written notice of the place of imprisonment of such inmate and a request for final disposition of such warrant."

A similar argument was raised in People v. Farmer (1969), 16 Mich App 148, 150:

"The people contend that the statute is not applicable because the record does not indicate when the required written notice was sent to the department of corrections, nor when the required certified letter was sent from the department of corrections to the Wayne county prosecutor."

In rejecting the argument this Court cited our prior decision in People v. Haynes (1967), 5 Mich App 641, 648, 649:

"The prosecutor in a case which originated in his county is certainly charged with a duty to keep his own records up to date and to give the department notice of the proceedings if he is desirous of receiving information from the department pursuant thereto. If the prosecutor did not give the department the necessary information, it would follow that the department could not be expected to give him subsequent notice."

The statute implicitly places a duty on the prosecutor to notify the Department of Corrections within a reasonable time that an untried warrant, indictment, information or complaint is outstanding against the defendant and a duty on that department to respond. A breach of these duties cannot be later raised to bar application of the statute and, thereby, frustrate the intent of the legislature.

Judge QUINN concurs in this opinion although it is contrary to his views as expressed in People v. Haynes (1967), 5 Mich App 641. No other judge of this Court having agreed with his views expressed in Haynes, and the Supreme Court not having passed on them, he feels it would be nothing but obstinacy to reassert his views.

Reversed.

All concurred.

NOTES

[1] MCLA § 750.360 (Stat Ann 1954 Rev § 28.592), and MCLA § 750.92(3) (Stat Ann 1962 Rev § 28.287[3]).

[2] This Court, in People v. Loney (1968), 12 Mich App 288, 292, rephrased the policy as follows:

"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."

[3] Indeed, we note that other than the return of service for several subpoenas in October and November of 1966, no action was taken by the prosecutor in the instant case between the arraignment in June, 1966, and the motion for the writ of habeas corpus in March, 1968, some 21 months later.

[4] Nichols v. Houghton Circuit Judge (1915), 185 Mich 654, was later followed in People v. Wilson (1929), 246 Mich 282, where the Court held the statutory period for motions for new trials to be jurisdictional.

[5] Among the authorities cited by the Court in Nichols, supra, is Perkins v. Perkins (1913), 173 Mich 690, a civil suit, thereby indicating that the rule for waiving subject-matter jurisdiction is the same for civil and criminal actions. For the general rule in civil suits, see: 20 Am Jur 2d, Courts, § 95.

[6] The only letter from the Department of Corrections is one addressed to defendant's attorney dated October 14, 1968 and stating inter alia: "We received no notification relating to the attempted larceny from a building charge prior to his being released to stand trial."