People v. Pummer

249 N.W.2d 78, 399 Mich. 326, 1976 Mich. LEXIS 219

• Court: Michigan Supreme Court
• Decided: December 31, 1976
• Docket: 57200, (Calendar No. 4)
• Status: Published

Opinions

Williams, J.

Defendant was convicted of first-degree murder, but before he was sentenced, the trial judge granted his motion for new trial. The prosecutor sought leave to appeal the order granting new trial and made specific reference to our opinion in People v Blachura, 390 Mich 326; 212 NW2d 182 (1973), which affirmed the jurisdiction of the Court of Appeals to grant leave to appeal to the prosecutor from an order granting a new trial.

After the Court of Appeals granted the prosecutor leave to appeal, the parties briefed issues relating to the propriety of the trial judge’s instructions to the jury. After formal submission and oral argument, the Court of Appeals concluded that leave was improvidently granted and dismissed the appeal. The Court of Appeals relied upon People v Martin, 59 Mich App 471; 229 NW2d 809 (1975), resurrecting MCLA 770.12; MSA 28.1109, and found "[n]o provision is included in the statute authorizing appeals by the people from an order granting a new trial”. 61 Mich App 552, 553; 233 NW2d 79 (1975).

Shortly thereafter we held that the prosecutor could appeal as of right an order of the circuit judge quashing an information, since it "was a final pretrial decision of the circuit court”. Jackson County Prosecutor v Court of Appeals, 394 Mich 527, 528; 232 NW2d 172 (1975). In so doing, we expressly overruled Martin, supra. On the same day, we entered an order on the prosecutor’s application in this case, granting leave to consider whether the prosecutor could appeal from an order granting a new trial "as of right or by leave”, 394 Mich 836 (1975).

In light of Blachura and Jackson County Prosecutor, supra, there should remain little question that appeals by the prosecutor, like those of all other litigants, are governed by MCLA 600.308; MSA 27A.308, and rules formulated by our Court. Final judgments are appealable as of right, GCR 1963, 806.1; interlocutory orders are appealable by leave, GCR 1963, 806.2.

In People v Pickett, 391 Mich 305, 312; 215 NW2d 695 (1974), we accepted our earlier-stated standard that:

"An ultimate or final judgment is not reached in a criminal case, following conviction, until the court pronounces a sentence, which leaves nothing to be done but enforcement.” People v Fisher; 237 Mich 504, 506; 212 NW 70 (1927).

Even earlier, Chief Justice Campbell stated:

"But what are known as final orders are adjudications upon motions or other applications, not involving a hearing upon pleadings and proofs, but upon other issues interlocutory or collateral, whereby some supposed right of a party is definitely cut off, or some liability fixed upon him. Usually, if not always, an order made on such a side hearing is only final if made in a certain way; whereas, if the decision had been otherwise it would have been interlocutory; while an absolute decree made in favor of either party is final. If the decision of a motion opens a case it is not generally final, unless it cuts off some acquired right under a decree. If it closes the matter and precludes any further hearing or investigation it is final.” Kingsbury v Kingsbury, 20 Mich 212, 215 (1870).

Clearly, an order granting a new trial is a non-final, interlocutory order. Therefore, under Black ura, the prosecutor proceeded correctly in applying for leave to appeal to the Court of Appeals.

We therefore reverse the judgment of the Court of Appeals and remand the cause for a decision on the substantive issues raised by the prosecutor.

In accordance with GCR 1963, 866, the order of this Court pursuant to the decision herein shall be entered and issued immediately upon the filing of this opinion.

Coleman, Fitzgerald, Lindemer, and Ryan, JJ., concurred with Williams, J.

Kavanagh, C. J.

Defendant was convicted by a jury of murder in the first degree in February, 1973. Prior to sentencing, defendant made a motion for a new trial, which motion was granted on November 5, 1973, the trial judge concluding that "the instructions were of such a nature as to generally confuse the jury and to unduly emphasize murder in relation to the discussion of the other possible verdicts there instructed, as well as to de-emphasize if not make impossible, a finding of not guilty by reason of insanity * * *

"[I]t appears manifest injustice to the rights of the defendant may well have resulted * * * and this court grants a new trial to the defendant.”

A new trial date of March 11, 1974 was set. The prosecution filed an application for leave to appeal to the Court of Appeals, and a motion to stay proceedings, relying on People v Blachura, 390 Mich 326; 212 NW2d 182 (1973), and GCR 1963, 806.2. The Court of Appeals granted the motion and application for leave February 4, 1974.

The case was argued January 10, 1975, and the Court of Appeals requested supplemental briefs on the question of its jurisdiction to hear the appeal. Both sides filed briefs on this question.

In a per curiam opinion dated May 30, 1975, the Court of Appeals held that leave to appeal had been improvidently granted, relying on People v Martin, 59 Mich App 471; 229 NW2d 809 (1975). 61 Mich App 552; 233 NW2d 79 (1975).

On August 19, 1975, this Court granted the prosecution’s motion to stay proceedings and granted leave to appeal "limited to the questions of the appealability to the Court of Appeals, as of right or by leave, of a grant of a motion for a new trial in a criminal cáse, and whether such a grant is reviewable by superintending control”. 394 Mich 836 (1975).

Arguments were presented on those questions in April, 1976.

We affirm.

I

We begin by stating that this case is not controlled by People v Blachura, supra. In Blachura, defendant was indicted on six counts of perjury. The jury trial ended with defendant being conyicted on five of the six counts. Defendant moved for a new trial, and a new trial was granted on two counts, with the remaining three being dismissed with prejudice.

The prosecutor was granted leave to the Court of Appeals. Defendant was granted leave to this Court to consider " 'only the narrow issue of whether or not the Court of Appeals has jurisdiction’ in this matter”. 390 Mich pp 331, 332.

All seven justices agreed that the answer to the question presented was in the affirmative, i.e., the Court of Appeals "had jurisdiction in this matter”.

The two opinions written in Blachura disagree as to various aspects concerning the reasons for jurisdiction, and the limits thereto, but none of that discussion was necessary to the decision of the "narrow issue” presented.

MCLA 770.12; MSA 28.1109 provides in pertinent part:

"A writ of error may be taken by and on behalf of the people * * * in the following instances, to wit:

"(a) From a decision or judgment quashing or setting aside any indictment or information, or any count thereof, where such decision or judgment is based upon the invalidity or construction of the statute upon which such indictment or information is founded;

"(b) From a decision arresting a judgment of conviction or directing a judgment of acquittal for insufficiency of the indictment, where such decision is based upon the invalidity or construction of the statute upon which such indictment or information is founded;

"(c) From the decision or judgment sustaining a special plea in bar, when the defendant has not been put in jeopardy, or from any other order of the court relative to admission of evidence or proceedings had or made at any time before the defendant is put in jeopardy.”

That is the extent of the prosecution’s right to appeal to the Court of Appeals. Because an order granting a motion for a new trial is not included within MCLA 770.12; MSA 28.1109, appeal will not lie.

The prosecution argues that Const 1963, art 6, §10, and MCLA 600.308; MSA 27A.308 (RJA § 308), and GCR 1963, 806.2(2) supersede the previously cited statutory limitations on prosecutorial appeals. We disagree.

Const 1963, art 6, § 10 provides that "The jurisdiction of the court of appeals shall be provided by law and the practice and procedure therein shall be prescribed by rules of the supreme court.”

Pursuant to this constitutional provision, MCLA 600.308; MSA 27A.308 (RJA §308) was enacted, providing:

"The court of appeals has jurisdiction on appeals from:

"(1) All final judgments from the circuit courts * * *

"(2) Such other judgments or interlocutory orders as the supreme court may by rule determine.”

GCR 1963, 806 provides:

".1 Appeal as of Right. In all criminal and civil matters, an aggrieved party shall have a right to appeal from all final judgments or final orders from the circuit courts * * * .

".2 Appeal by Leave. The court of appeals may grant leave to appeal from: * * *

"(2) Any judgment, order, act or failure to act by the circuit courts, * * * which is not a final judgment appealable as of right.”

No contention is made that the granting of defendant’s motion for a new trial is a final judgment or final order giving the prosecution a right to appeal. See Jackson County Prosecutor v Court of Appeals, 394 Mich 527; 232 NW2d 172 (1975); People v Pickett, 391 Mich 305, 313; 215 NW2d 695 (1974).

Neither GCR 1963, 806.2(2), nor RJA §§ 308 and 309 were intended to "thoughtlessly eliminate the traditional distinction between prosecutor and defendant appeals”. People v Blachura, supra, p 340 (Levin, J., concurring).

The ABA Standards Relating to Criminal Appeals, § 1.4 (Approved Draft, 1970), do not provide for prosecution appeal from a trial judge’s granting of a new trial.

"The trial court has likely acted upon a claim of error in the proceedings which the defense could have raised on appeal, had the trial judge denied the motion. In a sense, the prosecution has lost the chance to seek a ruling on the question from the higher tribunal unless it now has the right to take the matter up to the appellate court. On the other hand, the trial court possibly could have ruled in favor of the defense contentions during trial rather than after trial. If * * * instructions to the jury or other trial questions were decided initially in favor of the defendant, only a handful of states would permit prosecution appeal from a verdict favorable to the defense. It is not clear, therefore, that broad provisions for appeals from post-trial orders are necessary or sound.” Id, p 39.

Because there is no provision in MCLA 770.12; MSA 28.1109 allowing the prosecution to appeal the grant of a new trial by the trial court, we hold that the order is not appealable to the Court of Appeals.

II

Having held that the grant of a new trial is not appealable to the Court of Appeals, we turn to the consideration of whether the prosecution can seek an order of superintending control from the Court of Appeals to challenge the trial court’s grant of a motion for a new trial.

GCR 1963, 711.4 provides that the Court of Appeals, as well as this Court, and the circuit courts have "jurisdiction to issue superintending control orders to inferior courts”. While this Court has general superintending control over all the state courts, Const 1963, art 6, §4, the Court of Appeals has power to issue an order of superintending control only "in respect of a particular error in an actual case * * * ”, Morcom v Recorder’s Court Judges, 15 Mich App 358, 360; 166 NW2d 540 (1968). See also Genesee Prosecutor v Genesee Circuit Judge, 386 Mich 672; 194 NW2d 693 (1972).

GCR 711.3 provides that superintending control is to be used in place of the former writs of certiorari, mandamus, and prohibition.

The nature and scope of the former writs define the boundaries of the Court of Appeals order of superintending control. Accordingly, such orders are only available concerning legal questions that would formerly have been reviewable by mandamus, certiorari or prohibition. Genesee Prosecutor v Genesee Circuit Judge, supra. Any other interpretation and expansion of the availability of superintending control would do away with the distinction between these extraordinary writs and ordinary appeals. An extraordinary writ provides an efficient means of resolving legal and jurisdictional questions, without the need of ancillary factual determinations more appropriately resolved by appeal. "The peremptory common-law writs are among the most potent weapons in the judicial arsenal. 'As extraordinary remedies, they are reserved for really extraordinary causes.’ Ex parte Fahey, 332 US 258, 260 [67 S Ct 1558; 91 L Ed 2041] (1947).” Will v United States, 389 US 90, 107; 88 S Ct 269; 19 L Ed 2d 305 (1967).

Additionally, as we stated in Part I, supra, the Legislature has carefully limited the types of cases the prosecution may appeal to the Court of Appeals. If an order of superintending control were available to review alleged errors such as presented by the instant case, the specific limitations of the statute would be effectively nullified.

"Where the appeal statutes establish the conditions of appellate review, an appellate court cannot rightly exercise its discretion to issue a writ whose only effect would be to void those conditions and thwart the [Legislature’s] policy against piecemeal appeals in criminal cases.” Roche v Evaporated Milk Association, 319 US 21, 30; 63 S Ct 938; 87 L Ed 1185 (1943).

"The State should not be permitted to accomplish by certiorari what it cannot do by appeal. The right of the State to prosecute error in a criminal case exists only when such right is conferred by statute. * * *

"Where the State has no right of appeal from an order granting defendant a new trial, certiorari could not be granted as a substitute. To bring up the matter by certiorari, would be to accomplish by indirection what the statute does not expressly permit.” State v Paul, 80 NM 746, 747; 461 P2d 228, 229 (1969) cert den 397 US 1044 (1970).

Accord, State v Todd, 224 NC 776; 32 SE2d 313 (1944).

In the case such as this, the only writ that arguably would formerly have been available would be certiorari. However, "The writ of certiorari is for review of errors of law and our inquiry is limited to determining 'if the inferior tribunal, upon the record made, had jurisdiction, whether or not it exceeded that jurisdiction and proceeded according to law.’ ” Genesee Prosecutor v Genesee Circuit Judge, supra, p 681.

The discretionary determination of the trial court to grant a new trial due to his belief that his instructions were erroneous or confusing does not fit within the circumstances allowing grant of a writ of certiorari, and, accordingly, an order of superintending control is not available from the Court of Appeals.

The opinion of the Court of Appeals is affirmed. The cause is remanded for trial.

Levin, J., concurred in part I of the opinion of Kavanagh, C. J.