People v. Willie Miller

Murphy, J.

(dissenting). I respectfully dissent from the majority’s conclusion that MCL 330.2044(1); MSA 14.800(1044X1) requires dismissal of criminal charges when a defendant has been adjudicated incompetent for a total period of fifteen months, regardless of whether the period is continuous.

MCL 330.2044; MSA 14.800(1044) provides in pertinent part:

(1) The charges against a defendant determined incompetent to stand trial shall be dismissed:
(b) Fifteen months after the date on which the defendant was originally determined incompetent to stand trial.

Section 1044 governs the time during which an incompetent defendant may be forced to await docketing of his case for trial. People v Bowman, 141 Mich App 390, 400; 367 NW2d 867 (1985). In order to protect a defendant from an indefinite *244suspension of his right to trial, § 1044 requires that the charges be dismissed fifteen months after the date on which the defendant was determined incompetent. Id.

In People v John, 129 Mich App 664; 341 NW2d 861 (1983), this Court rejected the defendant’s argument that the charges against him should have been dismissed pursuant to § 1044 because more than fifteen months had elapsed since he had initially been found incompetent when an intervening seven-month period of competency was excluded. This Court stated that § 1044 contemplates that fifteen consecutive months must pass while a defendant is incompetent before dismissal is required. Id., 667-668.

In my opinion, the majority’s construction of § 1044 ignores the purpose of the statutes relating to a defendant’s incompetence to stand trial. A defendant is presumed competent to stand trial. MCL 330.2020(1); MSA 14.800(1020X1); Bowman, supra, 401. At the least, we may assume that this presumption reattaches when an incompetent defendant is adjudicated to have regained competence. A finding of incompetence merely tolls the state’s ability to prosecute the defendant. MCL 330.2022(1); MSA 14.800(1022X1). When the defendant is later determined competent, the "trial shall commence as soon as practicable.” MCL 330.2040(3); MSA 14.800(1040X3). The statutes also clearly contemplate that there may be a series of orders redetermining the issue of the defendant’s incompetence if the court, in its initial finding of incompetence, determines that there is a substantial probability that, with treatment, the defendant will attain competence to stand trial within the statutory fifteen-month time limit. MCL 330.2032(1); MSA 14.800(1032)(1); MCL 330.2034(1); MSA 14.800(1034X1); MCL 330.2038; MSA *24514.800(1038); MCL 330-2040(1); MSA 14.800(1040) (1). The phrase "originally determined incompetent,” as used in § 1044, refers to this series of orders which, under these statutes, may be issued periodically throughout the fifteen months.

Implicit in the statutory scheme is an assumption that a defendant who cannot regain competence within fifteen months is not substantially likely to attain competence in the near future. Therefore, in the interest of protecting the defendant’s due process rights, the charges are dismissed when he remains incompetent for a period of fifteen months. However, in the present case, treatment enabled defendant to regain competence within the fifteen-month period. Fifteen months after he was originally adjudicated incompetent, defendant was competent to stand trial.

The duty of courts is to interpret statutes as found. Matheson v Secretary of State, 170 Mich App 216, 219; 428 NW2d 31 (1988). A plain and unambiguous statute is to be applied, not interpreted, because such a statute speaks for itself. In re Forfeiture of $5,264, 432 Mich 242, 248; 439 NW2d 246 (1989); Matheson, supra. Courts may not speculate beyond the words employed in the statute. Matheson, supra. Ordinary words and phrases are given their plain and ordinary meaning. Matheson, supra. I am not persuaded that the plain and unambiguous language of § 1044(1) intends anything other than a period of fifteen consecutive months. As commonly understood, such an expression of time measurement implies consecutive units. Without further qualifying language, further judicial interpretation is inappropriate.

Furthermore, although it is not dispositive, I find it significant that when a felony punishable by life imprisonment is at issue, as in the present case, subsections 1044(3) and (4) provide that the *246prosecutor may at any time petition the court for permission to refile the charges if dismissed and that the court must reinstate these charges if the defendant is determined competent to stand trial. Moreover, in this case, it was stipulated that defendant was competent to stand trial. Defendant raises no claims of error arising out of his trial or of prejudice resulting from the failure to dismiss the charge. Therefore, even if the trial court’s failure to dismiss the charge was error, it was harmless error. I would affirm.