People v. Gambrell

345 N.W.2d 666, 131 Mich. App. 167

• Court: Michigan Court of Appeals
• Decided: December 19, 1983
• Docket: Docket 65963
• Status: Published

Opinions

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, 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 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 days, the trial court erred in ruling that jurisdiction had been lost.

Reversed and remanded.

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.