Opinion
Docket Nos. 58250, 58684.
Decided November 23, 1976.
On application for leave to appeal by the defendant circuit judge and on complaint for mandamus the Supreme Court, in lieu of granting leave to appeal, reversed the decision of the Court of Appeals and denied the writ of mandamus.
Ronald Larkin, in propria persona. Harold S. Sawyer, Prosecuting Attorney, and Craig S. Neckers, Assistant Prosecuting Attorney, for Stuart Hoffius, Circuit Judge.
Michael E. Panko, in propria persona.
Effective March 29, 1974, we adopted a new GCR 1963, 785.13:
"Providing Indigent Defendants with Facsimile Copies of Documents and Transcripts for Post-Conviction Proceedings. Without regard to whether an indigent defendant convicted of a crime has exercised his right of appeal or his right to appellate counsel or whether his conviction has or has not been reviewed or affirmed by the Court of Appeals or the Supreme Court, if defendant makes a request of the court which pronounced sentence for specific documents or transcripts or both which have been theretofore filed with that court, said request being in writing and indicating such materials are required to pursue post-conviction remedies, whether in state or Federal court, the clerk of the court which pronounced sentence shall provide the defendant with facsimile copies of such specific documents or transcripts or both without cost to him; this subrule applies to all criminal cases in which sentence has been heretofore or is hereafter pronounced."
Ronald Larkin was convicted of a felony in Kent Circuit Court in 1974. His request for certain documents and transcripts was denied by the circuit judge because an attorney, acting under court appointment, was then representing defendant in post-conviction proceedings. In fact, Larkin's appeal of right remains pending in the Court of Appeals. Larkin filed a complaint for superintending control in the Court of Appeals, asking that the judge be directed to order the county clerk to forward facsimile copies, as requested under subrule 785.13. The Court of Appeals responded favorably, and said: "Defendant [judge] is advised that the fact that plaintiff has had appellate counsel appointed for him is not grounds for denial of facsimile copies."
Michael E. Panko similarly had an appointed attorney pursuing an appeal of right in his behalf, when the Saginaw county clerk denied his request for copies of court records with the explanation that subrule 785.13 was limited to pro per indigent defendants. Since the State Court Administrator shared that opinion, Panko filed a complaint for mandamus in this Court, naming the State Court Administrator as defendant and requesting an order directing him to notify the courts that all requests by indigent defendants under subrule 785.13 must be honored.
While the introductory clause of subrule 785.13 may be read to require that facsimile copies be furnished without regard to whether an indigent defendant is then represented by counsel, that was not our intent.
We hold that the introductory clause means that an indigent defendant is entitled to facsimile copies to facilitate his pursuit of post-conviction remedies:
(1) if he is represented by counsel on appeal, only after his appeal of right has been concluded; or
(2) upon failure to exercise his appeal as of right or right to assigned counsel.
In lieu of leave to appeal, pursuant to GCR 1963, 853.2(4), we reverse the order of the Court of Appeals and dismiss Larkin's complaint for superintending control. Panko's complaint for mandamus is denied.
KAVANAGH, C.J., and WILLIAMS, LEVIN, COLEMAN, FITZGERALD, LINDEMER, and RYAN, JJ., concurred.