PEOPLE
v.
HILL
Docket No. 78726.
Michigan Court of Appeals.
Decided August 6, 1985.Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, L. Brooks Patterson, Prosecuting Attorney, Robert C. Williams, Chief Appellate Counsel, and Richard H. Browne, Assistant Prosecuting Attorney, for the people.
Lawson & Lawson, P.C. (by David M. Lawson), for defendant on appeal.
Before: WAHLS, P.J., and SHEPHERD and E.A. QUINNELL,[*] JJ.
PER CURIAM.
The issue in this case is whether the 180 day rule, MCL 780.131; MSA 28.969(1), required the trial court to dismiss the armed robbery charge against defendant.
*739 On May 18, 1981, defendant was convicted on his pleas of guilty of armed robbery, MCL 750.529; MSA 28.797, kidnapping, MCL 750.349; MSA 28.581, and felony-firearm, MCL 750.227b; MSA 28.424(2). All three charges arose out of a single criminal transaction. Defendant was sentenced to concurrent prison terms of from 5 to 15 years on the armed robbery and kidnapping convictions, to be served following the mandatory 2-year term on the felony-firearm conviction. Defendant began serving the sentences on June 11, 1981, and he remains in the custody of the Department of Corrections.
On October 21, 1981, defendant filed a motion to set aside the guilty pleas. Following a hearing, the trial court, by opinion dated January 14, 1982, and order entered January 29, 1982, vacated the armed robbery conviction and sentence and granted defendant a new trial on that charge.[1] Defendant's motion was denied as to the kidnapping and felony-firearm convictions. The prosecutor's motion for rehearing was denied by order entered March 5, 1982. On March 17, 1982, the trial court entered a supplemental order setting aside the armed robbery conviction and making the denial of defendant's motion to set aside the kidnapping and felony-firearm convictions a final order pursuant to GCR 1963, 518.2.
Defendant filed a claim of appeal from the March 17, 1982, order on the same day and a panel of the Court affirmed. (Unpublished per curiam, Docket No. 63053, decided February 1, 1983.) The Court of Appeals remittitur of record was entered March 2, 1983. Although no application for leave to appeal to the Michigan Supreme Court was filed, defendant did submit a letter *740 request to the Michigan Supreme Court to determine whether leave to appeal or other relief should be granted.[2] The Supreme Court denied relief by order entered September 16, 1983. The record was returned and received by the trial court on September 20, 1983. In the meantime, while the claim of appeal was pending in the Court of Appeals, defendant filed a motion to dismiss the armed robbery charge on the ground that the trial court had lost jurisdiction pursuant to the 180-day statute. The trial court denied the motion following a hearing.
On December 22, 1983, defendant filed a second motion to dismiss based on the 180-day statute. That motion was denied following a hearing by order entered February 15, 1984. A pretrial was held and trial was set for March 19, 1984; however, that trial date was adjourned because the assistant prosecutor assigned to the case was ill.
The armed robbery charge finally came to trial on April 27, 1984. At that time defendant renewed his motion to dismiss, based on the 180-day statute, and the motion was denied. The parties submitted a stipulation of facts upon which the court convicted defendant of armed robbery as charged. Defendant was sentenced to from 5 to 15 years' imprisonment to run concurrently with the sentence previously imposed for the kidnapping conviction. He appeals as of right. The sole issue on appeal is whether the trial court erred in failing to dismiss the armed robbery charge pursuant to the 180-day rule.
in People v Hill, 402 Mich. 272, 280-281; 262 NW2d 641 (1978), the Court stated:
"We hold that the statutory period [under MCL *741 780.131; MSA 28.969(1)] begins with the coincidence of either conditions 1 or 2 and condition 3:
"1) The issuance of a warrant, indictment or complaint against a person incarcerated in a state prison or under detention in any local facility awaiting incarceration in any state prison;
"2) The incarceration of a defendant in a state prison or the detention of such defendant in a local facility to await such incarceration when there is an untried warrant, indictment, information or complaint pending against such defendant; and
"3) The prosecutor knows or should know that the defendant is so incarcerated when the warrant, indictment, information or complaint is issued or the Department of Corrections knows or should know that a warrant, indictment, or complaint is pending against one sentenced to their custody."
A defendant's trial need not be concluded within 180 days; rather the prosecutor must take good-faith action within that time to ready the case for trial. People v Hill, supra, p 281. If good-faith efforts are made to bring the defendant to trial, the defendant cannot defeat the court's jurisdiction by delaying his trial. People v Farmer, 127 Mich. App. 472, 477; 339 NW2d 218 (1983). A violation of the 180-day statute requires dismissal of the charge with prejudice. MCL 780.133; MSA 28.969(3).
In the instant case defendant began serving his sentence on June 11, 1981. The 180-day period commenced on January 29, 1982, the date of the trial court's order setting aside the armed robbery conviction and granting a new trial on that charge. The untried armed robbery charge was pending as of that date. On March 17, 1982, however, defendant filed a claim of appeal from the final order denying his motion to set aside the kidnapping and felony-firearm convictions. The prosecutor argues, and we agree, that the statutory *742 period was tolled during the pendency of the proceedings on appeal. Had the prosecutor proceeded to trial on the armed robbery charge, and had this Court or the Supreme Court ultimately reversed the kidnapping and/or felony-firearm convictions, the prosecutor may have been precluded under the Double Jeopardy Clause from retrying defendant on the latter offenses. See People v White, 390 Mich. 245; 212 NW2d 222 (1973). We need not decide whether retrial would, in fact, have been barred under these circumstances. We hold only that the 180-day statute did not require the prosecutor to risk such a judicial determination by proceeding to trial on the armed robbery charge while the remaining charges arising out of the same transaction were pending on appeal. We therefore conclude that the 180-day period was tolled from the date of the filing of the claim of appeal, March 17, 1982, until the record was returned by the Supreme Court to the trial court on September 20, 1983.[3]
The armed robbery charge came to trial on April 27, 1984. The record does not sufficiently indicate what good-faith efforts to bring the case to trial were made by the prosecutor prior to that time. We therefore remand the case to the trial court to determine whether the prosecutor made good-faith efforts to ready the case for trial within the 180-day period which commenced on January 29, 1982, was tolled from March 17, 1982, and recommenced on September 20, 1983. In the event that the trial court finds compliance with the 180-day statute, defendant's armed robbery conviction and sentence shall be affirmed. If the trial court determines that the prosecutor failed to make *743 good-faith efforts to ready the case for trial within the requisite period, the armed robbery conviction shall be vacated and the charge dismissed.
Remanded. We do not retain jurisdiction.
SHEPHERD, J. (concurring).
I agree with the majority's conclusion that the 180-day period, MCL 780.131; MSA 28.969(1), was tolled while defendant sought relief from the trial court's denial of his motion to set aside the convictions for kidnapping and felony-firearm. However, I would reach the result for reasons other than the possible bar posed by "the same transaction test" for double jeopardy. People v White, 390 Mich. 245, 258; 212 NW2d 222 (1973).
The prosecutor must take good-faith action within the 180-day period to ready the case for trial. People v Hill, 402 Mich. 272, 281; 262 NW2d 641 (1978); People v Hendershot, 357 Mich. 300; 98 NW2d 568 (1959). In this case, if the prosecutor had proceeded with the armed robbery charge, the result would have been a severance of the charges, with an eventual second trial on the other two charges had they been reversed on appeal. I do not believe that the prosecutor was required to proceed to trial in these circumstances, since the delay resulted from defendant's appeal. "[T]he defendant cannot defeat the jurisdiction of the court by delaying his trial." People v Farmer, 127 Mich. App. 472, 477; 339 NW2d 218 (1983). A prosecutor does not act in less than good faith when he declines to squander judicial resources by proceeding with separate trials pending a defendant's appeal.
Therefore, I would not address the possible application of the same-transaction test as a bar to a subsequent trial on the kidnapping and felony-firearm charges.
NOTES
[*] Circuit judge sitting on the Court of Appeals by assignment.
[1] The trial court found an insufficient factual basis to support the armed robbery plea.
[2] See Administrative Order No. 1977-4, 400 Mich. lxvii.
[3] Pursuant to defendant's letter request in the Supreme Court, the matter remained pending on appeal the same as if defendant had filed an application for leave to appeal.