People v. Curtis

202 N.W.2d 539, 42 Mich. App. 652, 1972 Mich. App. LEXIS 979

• Court: Michigan Court of Appeals
• Decided: September 13, 1972
• Docket: Docket 13524
• Status: Published

Opinions

R. B. Burns, J.

Defendant was arrested on a complaint and warrant charging sale of marijuana, contrary to MCLA 335.152; MSA 18.1122. He was arraigned in district court and the case was adjourned for a preliminary examination.

Between the time of the arraignment and the date set for the preliminary examination an agreement was reached between the prosecutor and the defense attorney. It was agreed that a second count, charging possession of marijuana, would be added to the charge, and the defendant would be allowed to plead guilty to the second count. Count I was to be nol-prossed.

Defendant was rearraigned in district court. The prosecutor moved to amend the complaint and warrant and to add Count II. The motion was granted and the defendant waived examination. A motion was filed in district court to enter a nolle prosequi as to Count I. The motion was granted and the order entered.

An information charging sale was filed in circuit court. At the circuit court arraignment it was discovered that the wrong information had been filed. At that time the circuit judge expressed doubt that a district court had the authority to nol-pros a felony charge. He told the parties to straighten out the matter by afternoon.

That afternoon the prosecutor filed an information charging possession. The circuit judge refused to arraign the defendant because the district judge had signed the return binding the defendant over to circuit court prior to the entry of the order of nolle prosequi and, therefore, the circuit court had jurisdiction of the cause prior to the district judge signing the order of nolle prosequi.

The circuit judge entered an order of superintending control which (1) declared the order of nolle prosequi to be null and void, (2) remanded the case to the district court for arraignment on a charge of sale, and (3) ordered the prosecuting attorney, his assistants, and the district court and its judges to abide by the order of superintending control in all other criminal cases in the county then pending and which might be processed in the future.

Pursuant to this order the defendant was rearraigned in district court on the charge of sale. He demanded an examination and a date was set for the examination.

Prior to the examination defendant filed in this Court an application for leave to appeal the circuit court’s order of superintending control. Leave was granted.

While the defendant has alleged several errors only two require discussion.

A prosecutor has no right to nol-pros a case without leave of court. People v Ciatti, 17 Mich App 4 (1969).

The applicable statute, MCLA 767.29; MSA 28.969 states:

"It shall not hereafter be .lawful for any prosecuting attorney to enter a nolle prosequi upon any indictment, or in any other way to discontinue or abandon the same, without stating on the record the reasons therefor and without the leave of the court having jurisdiction to try the offense charged, entered in its minutes. ” (Emphasis supplied.)

Since sale and possession of marijuana are felonies, the circuit court has exclusive jurisdiction to try both and the district court did not have authority to enter the nolle prosequi.

The statute in no way interferes with the discretion of the prosecutor. He is chief law enforcement officer of the county and has the right to éxercise broad discretion to determine under which statute a prosecution will be instituted. Genesee Prosecutor v Genesee Circuit Judge, 386 Mich 672 (1972). However, once he has exercised his discretion he cannot nol-pros or dismiss the case without leave of that court which has jurisdiction to try the offense charged.

MCLA 600.615; MSA 27A.615 states:

"The circuit courts have a general superintending control over all inferior courts and tribunals, subject to the rules of the supreme court.”

The circuit court had the power to issue an order of superintending control to the district court and did not exceed its authority in declaring null and void the district court’s nolle prosequi.

However, the circuit judge had no authority to issue an order of superintending control to the prosecutor and his assistants. The circuit court has superintending control only over inferior courts and tribunals, not prosecuting attorneys. Such control over prosecuting attorneys by courts would violate the constitutional separation of the powers of the judicial and executive branches of government. Genesee Prosecutor v Genesee Circuit Judge, supra.

The case is affirmed in part, reversed in part, and remanded to the circuit court for proceedings in conformity with this opinion.

Holbrook, P. J., concurred.