People v. Tubbs

Michigan Court of Appeals

People v. Tubbs

236 N.W.2d 77, 64 Mich. App. 341, 1975 Mich. App. LEXIS 1272

CourtMichigan Court of Appeals

DecidedSeptember 22, 1975

DocketDocket 17535

StatusPublished

Cited by6 cases

This text of 236 N.W.2d 77 (People v. Tubbs) 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

People v. Tubbs, 236 N.W.2d 77, 64 Mich. App. 341, 1975 Mich. App. LEXIS 1272 (Mich. Ct. App. 1975).

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Opinions

M. J. Kelly, J.

Rosie Hardges was killed on July 14, 1967. Defendant was convicted by a jury of second-degree murder, MCLA 750.317; MSA 28.549, on September 12, 1968. On appeal to this Court, his conviction was affirmed. People v Tubbs, 22 Mich App 549; 177 NW2d 622 (1970). Subsequently defendant, in propria persona, forwarded to this Court a "Motion for Peremptory Reversal” in which issues not dealt with in the initial appeal [343]*343were raised. Treating the document as an application for leave to take a delayed appeal, we granted leave.

The people have continually asserted that since "defendant has had his day in court”, we are without jurisdiction to consider issues which could have been, but were not, raised in the initial appeal. Suffice it to note that this precise argument has been twice rejected in the course of prior proceedings in this very case, once by our Supreme Court, People v Tubbs, 392 Mich 769 (1974). We do not reconsider it.

We have examined the allegations of error. All are without merit except the contention that the trial court erred in not conducting the competency hearing required by MCLA 767.27a(4); MSA 28.966(11)(4). Since the pertinent statutory provisions were enacted by 1966 PA 266, effective March 10, 1967, no retroactivity question is presented.

In the instant case, as in People v Lucas, 393 Mich 522; 227 NW2d 763 (1975), defendant was committed to the Department of Mental Health. As in Lucas, a report was filed with the trial court recommending that defendant be found competent to stand trial. As in Lucas, no competency hearing was held upon defendant’s return to the committing court. The disposition of this case is governed by Lucas.

Defendant does not contend that he was in fact incompetent at the time of his trial. We quote the Lucas opinion:

"As we said in Blocker, supra, [People v Blocker, 393 Mich 501; 227 NW2d 767 (1975)] failure to follow a statute or court rule respecting competency determination does not ipso facto entitle a defendant to a new trial. Evidence substantiating incompetency-in-fact [344]*344must establish that there is a violation of rights before a new trial will be ordered. Here, as in Blocker, no evidence of incompetence was adduced at trial and no offer of such evidence is now made.” 393 Mich at 528.

We therefore adopt the Lucas remedy. The conviction is affirmed without prejudice to defendant’s right to file a delayed motion for new trial if he wishes to claim incompetency.

D. E. Holbrook, P. J., concurred.

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M. J. Kelly, J.

Rosie Hardges was killed on July 14, 1967. Defendant was convicted by a jury of second-degree murder, MCLA 750.317; MSA 28.549, on September 12, 1968. On appeal to this Court, his conviction was affirmed. People v Tubbs, 22 Mich App 549; 177 NW2d 622 (1970). Subsequently defendant, in propria persona, forwarded to this Court a "Motion for Peremptory Reversal” in which issues not dealt with in the initial appeal [343]*343were raised. Treating the document as an application for leave to take a delayed appeal, we granted leave.

The people have continually asserted that since "defendant has had his day in court”, we are without jurisdiction to consider issues which could have been, but were not, raised in the initial appeal. Suffice it to note that this precise argument has been twice rejected in the course of prior proceedings in this very case, once by our Supreme Court, People v Tubbs, 392 Mich 769 (1974). We do not reconsider it.

We have examined the allegations of error. All are without merit except the contention that the trial court erred in not conducting the competency hearing required by MCLA 767.27a(4); MSA 28.966(11)(4). Since the pertinent statutory provisions were enacted by 1966 PA 266, effective March 10, 1967, no retroactivity question is presented.

In the instant case, as in People v Lucas, 393 Mich 522; 227 NW2d 763 (1975), defendant was committed to the Department of Mental Health. As in Lucas, a report was filed with the trial court recommending that defendant be found competent to stand trial. As in Lucas, no competency hearing was held upon defendant’s return to the committing court. The disposition of this case is governed by Lucas.

Defendant does not contend that he was in fact incompetent at the time of his trial. We quote the Lucas opinion:

"As we said in Blocker, supra, [People v Blocker, 393 Mich 501; 227 NW2d 767 (1975)] failure to follow a statute or court rule respecting competency determination does not ipso facto entitle a defendant to a new trial. Evidence substantiating incompetency-in-fact [344]*344must establish that there is a violation of rights before a new trial will be ordered. Here, as in Blocker, no evidence of incompetence was adduced at trial and no offer of such evidence is now made.” 393 Mich at 528.

We therefore adopt the Lucas remedy. The conviction is affirmed without prejudice to defendant’s right to file a delayed motion for new trial if he wishes to claim incompetency.

D. E. Holbrook, P. J., concurred.

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Bluebook (online)

236 N.W.2d 77, 64 Mich. App. 341, 1975 Mich. App. LEXIS 1272, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-tubbs-michctapp-1975.

Opinions

M. J. Kelly, J.

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