Carr v. Midland County Concealed Weapons Licensing Board

674 N.W.2d 709, 259 Mich. App. 428
CourtMichigan Court of Appeals
DecidedNovember 18, 2003
DocketDocket No. 239606
StatusPublished
Cited by9 cases

This text of 674 N.W.2d 709 (Carr v. Midland County Concealed Weapons Licensing Board) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Carr v. Midland County Concealed Weapons Licensing Board, 674 N.W.2d 709, 259 Mich. App. 428 (Mich. Ct. App. 2003).

Opinions

Sawyer, J.

We are asked in this case to determine whether a person who was charged with a drug felony and successfully employed the provisions of MCL 333.7411 is considered to be a convicted felon for purposes of obtaining a concealed pistol license. We hold that a person who successfully completes probation under MCL 333.7411 and had the felony charge [430]*430dismissed under that statutory provision is not deemed to have been convicted of a felony under the concealed pistol licensing act (cpla)1 by virtue of the charge dismissed under MCL 333.7411. Both the trial court and the Midland County Concealed Weapons Licensing Board clearly erred in concluding that appellant should be denied a concealed pistol license on the basis of a felony conviction.

Appellant applied for a concealed pistol license pursuant to the cpla. MCL 28.425b(7) provides that a county licensing board shall issue a license to an applicant if the applicant meets all the enumerated criteria, including never having been convicted of a felony.2 MCL 28.425b(16)(a)3 defines “convicted” as, inter alia, “a plea of guilty or nolo contendere if accepted by the court.”

In 1996 appellant was charged with obtaining a controlled substance by fraud4 and sought deferred sentencing under MCL 333.7411(1). This statute provides that when an individual who has not previously been convicted of a controlled substance offense pleads guilty or is convicted of any of certain controlled substance offenses, the trial court, without entering a judgment of guilt and with the individual’s consent, may defer further proceedings and place the individual on probation. If the individual fulfills the terms of the probation, the trial court must discharge the individual and dismiss the proceedings. A discharge and dismissal is without an adjudication of [431]*431guilt and does not constitute a conviction for the purposes of deferred sentencing or any disqualification or disability imposed by law. Appellant tendered a plea of guilty and was granted what is commonly referred to as “§ 7411 status.” She fulfilled the terms of her probation, and the trial court dismissed the proceedings.

On her application for a concealed weapons permit appellant indicated that she had not been convicted of a felony. The board held a hearing that appellant attended, and denied her application on the ground that she had a felony conviction. The board did not provide appellant with written notice of the reason for the denial of her application within the time required by MCL 28.425b(14).

Appellant appealed the board’s decision in the circuit court. She asserted that because a discharge and dismissal under MCL 333.7411(1) is not considered a conviction for purposes of any disqualification or disabilities imposed by law, the disposition of the controlled substance charge pursuant to MCL 333.7411 cannot be considered a conviction under MCL 28.425b(16)(a). Appellant also alleged that the board failed to comply with the statutory requirement that it provide her with written notice of the reason for the denial of her application. In response, the board argued that because the cpla defined “convicted” to include a plea of guilty if accepted by the court, appellant was not eligible to receive a concealed weapons permit.

The circuit court denied appellant’s appeal of the board’s decision, finding that appellant received § 7411 status after her plea was entered and accepted by the court and, therefore, the board did not clearly [432]*432err in finding that appellant had a conviction as defined by MCL 28.425b(16)(a). The circuit court did not address appellant’s argument that the board violated MCL 28.425b(14) by failing to give her written notice of the basis of its decision.

The decision of a concealed weapons licensing board to deny an application for a concealed weapons permit is reviewed for clear error.5 Similarly, we review a lower court’s review of an agency decision for clear error. Dignan v Michigan Public School Employees Retirement Bd.6 An issue of statutory interpretation is reviewed de novo. Koontz v Ameritech Services, Inc.7 The primary goal of statutory interpretation is to ascertain and give effect to the intent of the Legislature. If the language of a statute is clear and unambiguous, judicial interpretation is not permitted. Frankenmuth Mut Ins Co v Marlette Homes, Inc.8

In proceedings conducted pursuant to MCL 333.7411(1), an individual must either tender a plea of guilty or otherwise be found guilty of certain controlled substance offenses. In a proceeding under § 7411, however, the trial court does not adjudicate guilt at the time the plea is tendered. Rather, the court defers further proceedings and places the individual on probation. If the individual fulfills the terms of the probation, the trial court discharges the individual without an adjudication of guilt and dismisses the proceedings. It is only when the individual fails to [433]*433fulfill the terms of the probation that the trial court enters an adjudication of guilt.

The trial court concluded that because appellant had tendered a plea of guilty that was accepted by the trial court, she is deemed to have been convicted of a felony under the cpla because the cpla’s definition of “convicted” includes a plea of guilty if accepted by the court. In other words, the court reasoned that, because appellant’s plea of guilty was accepted for purposes of placing her on § 7411 status, she is deemed convicted under the cpla even though that plea never resulted in an adjudication of guilt and the proceedings were ultimately dismissed. We disagree with the trial court’s conclusion.

First, there is the question whether appellant’s plea should be deemed “accepted.” Appellant argues in part that a plea under § 7411 should be considered as having been taken under advisement, MCR 6.302(F). The cases cited by appellant, however, do not clearly establish that this is the appropriate procedure to be employed under § 7411, nor does the statute itself clearly establish whether such a plea is accepted or taken under advisement. Further, we do not have the benefit of a transcript of the 1996 plea proceeding itself to determine whether the trial judge in. appellant’s drug case formally accepted the plea or indicated that he was taking it under advisement. In any event, we do not believe that resolution of this case depends on whether a plea tendered in a § 7411 proceeding is formally accepted or is merely taken under advisement. In either event, appellant prevails. Accordingly, we shall proceed by assuming, without deciding, that the trial court in the 1996 criminal case did formally accept the plea.

[434]*434MCL 333.7411(1) provides that if an individual fulfills the terms and conditions of probation imposed under § 7411, “the court shall discharge the individual and dismiss the proceedings.” If the proceedings have been dismissed, then so has the acceptance of the guilty plea. Under the trial court’s rationale, a defendant who pleads guilty to a felony, successfully moves to -withdraw that plea after it is accepted, and goes to trial and is acquitted would be deemed to have been convicted of a felony under the CPLA because the plea had been accepted.

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Cite This Page — Counsel Stack

Bluebook (online)
674 N.W.2d 709, 259 Mich. App. 428, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carr-v-midland-county-concealed-weapons-licensing-board-michctapp-2003.