PEOPLE
v.
GAMBRELL
Docket No. 65963.
Michigan Court of Appeals.
Decided December 19, 1983.Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Deputy Chief, Civil and Appeals, and Larry L. Roberts, Assistant Prosecuting Attorney, for the people.
Edick & Esper (by David J. Esper), for defendant on appeal.
Before: D.F. WALSH, P.J., and BEASLEY and D.L. SULLIVAN,[*] JJ.
*171 D.L. SULLIVAN, J.
On June 3, 1982, the trial court granted defendant's motion to dismiss the charge of manslaughter, MCL 750.321; MSA 28.553. The prosecution appeals as of right.
On June 29, 1981, the prosecution issued a complaint in the present case against defendant. Although the record is somewhat unclear, the parties have assumed that defendant was a prison inmate in a halfway house at the time. However, if he had not done so already, defendant very soon afterward fled the state. On July 3, 1981, he was arrested in Arkansas. Three days later, the Department of Corrections asked him if he would waive extradition. Although he intially refused, he in fact waived extradition on October 7, 1981.
Unless a prisoner waives extradition, it normally takes between three months and one year to extradite him. Noticing that the Department of Corrections was seeking extradition of defendant as an escapee, the prosecution decided not to proceed to seek extradition on its own for manslaughter. It did, however, inform the Department of Corrections about the manslaughter complaint.
Defendant was returned to Michigan on October 17, 1981. However, rather than informing the prosecution that defendant was back, the Department of Corrections merely processed him through the prison system. By chance, the prosecution found out about defendant's return in February, 1982. Soon after, it petitioned for a writ of habeus corpus to procure defendant to prosecute him. The defendant was subsequently arraigned on March 6, and the preliminary examination was held on March 15, 1982.
The prosecution first argues that the application of People v Woodruff, 414 Mich. 130; 323 NW2d 923 (1982), is prospective only. Before Woodruff, *172 this Court was split on whether or not the 180-day rule, MCL 780.131; MSA 28.969(1), applied to prison inmates. Woodruff resolved the split, holding that it does. But even though it has limited retroactive activity, it applies to the present case:
"[T]his decision shall only apply to existing and future untried warrants, indictments, informations or complaints and to cases pending on direct review where the issue is preserved." 414 Mich. 138. (Footnote omitted.)
In fact, the Supreme Court has been applying it retroactively. E.g., People v Charles Moore, 417 Mich. 878; 329 NW2d 304 (1983); People v Wheeler, 414 Mich. 966 (1982); People v Jerrils, 414 Mich. 935 (1982).
The next issue in this case concerns when the 180 days started. The prosecution claims that it started October 17, 1981, when defendant was brought back to Michigan. Defendant claims it started June 29, 1981, when the complaint was issued. Actually, which date we choose does not matter because we reach the same result either way. If we use June 29, we do not count the time between June 29 and October 17, because defendant was then an escapee fighting extradition. The prosecution could not have taken good faith efforts to bring defendant to trial within this time. We do not require it to do a useless act. Accordingly, the 180-day period was tolled during this time. People v Thomas, 21 Mich. App. 465, 472; 175 NW2d 540 (1970).
We hold that the trial court erred in dismissing this case. People v Castelli, 370 Mich. 147; 121 NW2d 438 (1963), is almost directly on point. On November 2, 1960, the Oakland prosecutor issued a warrant against the defendant. At that time, he *173 was in the Wayne County jail. However, the Wayne County prosecutor failed to deliver him to the Department of Corrections until March 3, 1961. The Oakland prosecutor failed to petition for a writ of habeas corpus until August 25, 1961. The Supreme Court held that the 180 days started to run on March 3.[1] By August 25, when the petition for habeas corpus was filed, the 180 days had not quite elapsed. The Supreme Court held that jurisdiction had not been lost.
The 180-day rule does not require the prosecution to bring the defendant to trial within that period. Instead, it requires that the prosecution expend good faith efforts to commence proceedings against the defendant within 180 days. People v Hendershot, 357 Mich. 300; 98 NW2d 568 (1959); People v Hegwood, 109 Mich. App. 438; 311 NW2d 383 (1981); People v Anglin, 102 Mich. App. 118; 301 NW2d 470 (1980); People v Downing, 31 Mich. App. 31; 187 NW2d 263 (1971), lv den 386 Mich. 761 (1971). By the time the prosecution petitioned for habeas corpus, only 132 days had elapsed. In fact, the 180 days had not expired by the time defendant was arraigned or the preliminary examination held. Holding the preliminary examination within the 180-day period sufficiently complies with the rule. People v Stephens, 103 Mich. App. 640; 303 NW2d 51 (1981), lv den 413 Mich. 912 (1982); People v Asher, 32 Mich. App. 380, 385; 189 NW2d 148 (1971), lv den 385 Mich. 767 (1971); People v Linscott, 14 Mich. App. 334; 165 NW2d 514 (1968), lv den 381 Mich. 807 (1969). Because the prosecution did commence proceedings within 180 *174 days, the trial court erred in ruling that jurisdiction had been lost.
Reversed and remanded.
D.F. WALSH, P.J. (concurring).
I concur in reversal of the trial court's order granting defendant Benny Gambrell's motion to dismiss.
The trial court in this case ruled that the 180-day statutory period, MCL 780.131; MSA 28.969(1), began to run on October 17, 1981, the day defendant was brought back to Michigan after waiving extradition in Arkansas. After careful review of the record, I am persuaded that the trial court was correct in so ruling.
The record indicates that defendant was an escapee on June 28, 1981, the day of the charged offense, and that he was not in custody when the manslaughter warrant was issued.[1] Under the test enunciated by the Supreme Court in People v Hill, 402 Mich. 272, 280-281; 262 NW2d 641 (1978), the statutory period did not begin to run upon issuance of the warrant, since defendant was not incarcerated in a state prison or under detention in a local facility awaiting such incarceration at that time. 402 Mich. 280-281 (condition 1). Rather, the statutory period began to run when, while the warrant was pending, defendant was returned to Michigan for incarceration. 402 Mich. 281 (condition 2).
I agree fully with my colleagues' conclusion that, during the 180-day period following defendant's return to Michigan, the prosecution took *175 good faith action to bring defendant to trial. People v Hendershot, 357 Mich. 300, 304; 98 NW2d 568 (1959). The trial court, therefore, did not lose jurisdiction.
BEASLEY, J. (concurring in result).
I concur in the result, but write separately to indicate my reasons.
Failure to bring an inmate to trial on untried warrants within 180 days triggers application of the 180-day rule.[1] At that point, the burden falls on the prosecution to justify the delay. I agree with that part of Judge WALSH'S concurring opinion in which he concludes that the 180-day period began to run in October, 1981, when defendant was extradited to Michigan from Arkansas.
I accept as accurate the representation that the delay from October, 1981, to February 26, 1982, was no fault of the prosecution. But neither was it the fault of defendant. The purpose of the statute is to secure a speedy trial for inmates.[2] Thus, good faith effort by the prosecutor does not necessarily stop the 180-day period from running.[3]
In the within case, the 180-day period would have expired in April, 1982. In March, 1982, defendant was arraigned and both a preliminary examination and a so-called calendar conference were *176 held. When defendant moved to dismiss[4] under the 180-day rule, the trial court granted dismissal on May 25, 1982. This ruling by the trial court was premature. At that point, jurisdiction had not been lost. I would reverse the trial court and order the matter set down for prompt trial.
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment.
[1] This particular conclusion was sub silentio overruled in People v Hill, 402 Mich. 272, 280-281; 262 NW2d 641 (1978). However, Hill did not affect the rule's interpretation that the court does not lose jurisdiction if the prosecution takes "good-faith action within that time to ready the case for trial". 402 Mich. 281.
[1] According to a Department of Corrections employee, "We were advised on June 30, 1981, that he, effective June 28, 1981, Mr. Gambrell was a fugitive from our department, was an escapee." And, according to the officer in charge, defendant was not in custody when the warrant was issued. Upon issuance of the warrant, he had:
"Contacted the correction officer where he was, man in charge of correction, halfway house where he was stationed as to any information they had on him. Contacted, talked with a girlfriend of his and placed him in the lien [sic], put a stop on him in our identification system."
[1] MCL 780.131; MSA 28.969(1), which provides in part:
"* * * 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."
[2] People v Hill, 402 Mich. App. 272, 280; 262 NW2d 641 (1978).
[3] See People v Forrest, 72 Mich. App. 266, 269; 249 NW2d 384 (1976), where we said:
"* * * any delay occasioned by the failure of the court to act cannot be permitted to defeat the intendment of the statute."
Also, see People v Pitsaroff, 102 Mich. App. 226; 301 NW2d 858 (1980), rev'd and rem'd 411 Mich. 941; 308 NW2d 98 (1981).
[4] The motion was dated April 19, 1982, and filed April 20, 1982.