SMITH
v.
ROBEY
Docket No. 19877.
Michigan Court of Appeals.
Decided January 9, 1975.*631 Hays & Goldstein, P.C., for plaintiff.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Milton I. Firestone and Thomas R. Wheeker, Assistants Attorney General, for defendant.
Before: QUINN, P.J., and BASHARA and VAN VALKENBURG,[*] JJ.
PER CURIAM.
The plaintiff was found not guilty of armed robbery by reason of insanity and committed to the Department of Mental Health pursuant to MCLA 767.27b; MSA 28.966(12). Subsequently, the plaintiff brought this action seeking to maintain a class action for a writ of mandamus ordering the defendant to release all confined persons who have not been adjudged mentally ill. The plaintiff also sought habeas corpus for his own release. The circuit court denied relief.
The Supreme Court's decision in People v McQuillan, 392 Mich. 511; 221 NW2d 569 (1974), controls this case. In that case it was held that a person committed under the automatic commitment statute could be held for 60 days for examination and observation and that after this period a hearing must follow forthwith. It would appear that the plaintiff is one of those covered by the *632 statement of the Court at page 547 where it was said:
"The ruling as to such automatic commitment procedures is to have prospective effect only. Except that any already similarly detained for more than 60 days without examination and observation shall be given examination and observation within the 60 days from the date of this opinion and thereupon noticed for hearing within the next 10 days or discharged. The ruling as to release procedures applies immediately to all those automatically committed under MCLA 767.27b."
The order of the circuit court must be reversed. However, because the proper disposition of this case may have been delayed by the pendency of this action we deem it appropriate to duplicate the action of the Supreme Court in McQuillan. The prosecutor, or other proper party, may have 20 days from the date of this decision to take commitment action in the probate court. If this is not done, or if the prosecutor indicates that he will not take such action, the defendant shall be discharged.
Reversed and remanded.
NOTES
[*] Former circuit judge, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.