Opinion
Docket No. 77943.
Decided July 16, 1985. Leave to appeal applied for.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, H. Kevin Drake, Prosecuting Attorney, and Leonard J. Malinowski, Assistant Attorney General, Department of Attorney General, Prosecuting Attorneys Appellate Service, for the people.
State Appellate Defender (by Kim Robert Fawcett), for defendant on appeal.
On April 18, 1980, defendant was convicted of first-degree criminal sexual conduct, MCL 750.520b(1)(e); MSA 28.788(2)(1)(e). That conviction was reversed by this Court on June 24, 1982, and the case was remanded to the circuit court for a new trial. The prosecution subsequently applied for leave to appeal to the Supreme Court, but on November 10, 1982, the Supreme Court denied the application for leave. People v Gasco, 414 Mich. 951 (1982). The order denying leave was filed in the trial court on November 17, 1982. On November 23, 1982, the circuit court appointed counsel for defendant.
Following the appointment of counsel by the circuit court, nothing happened until December 21, 1982, when substitute counsel was appointed. A pretrial conference was scheduled for January, 1983, but was not held. A pretrial conference was held on February 1, 1983, but was adjourned by the agreement of both the prosecutor and the defense counsel because they wished to pursue plea and sentence negotiations. On April 15, 1983, another pretrial conference was held; at that conference, a trial date was not set, as both attorneys again requested a recess to continue plea negotiations. The agreement was to recess the pretrial conference for 30 days before scheduling a trial date to continue the negotiations and to give the attorneys another 15 days after the end of the 30-day period in which to file any pretrial motions. No trial date was set, however, until on August 8, 1983, the trial court sua sponte scheduled trial for September 29, 1983. On August 11, 1983, defense counsel filed a written waiver of speedy trial on defendant's behalf (although defendant had not signed the waiver) to continue the plea and sentence negotiations. Finally, on September 15, 1983, defense counsel filed a motion to quash, alleging that the 180-day rule, MCL 780.131 et seq.; MSA 28.969(1) et seq., had been violated. The trial court denied the motion, and defendant filed this interlocutory appeal. During this entire 318-day period, defendant remained in prison, serving a sentence on an unrelated conviction.
Beginning November 17, 1982, the date on which the order denying leave to appeal to the Supreme Court was filed in the circuit court.
The issue before us is whether the 180-day rule has been violated where both the prosecution and the defense are equally responsible for the delay in bringing the defendant to trial because of a mutual desire to reach a negotiated plea and sentence bargain and to avoid the necessity of bringing the case to trial. We find that, in this case, the 180-day rule has been violated.
The 180-day rule does not require the trial to be commenced within 180 days. Instead, the rule obligates the prosecution to take good-faith action during the 180-day time period and thereafter to proceed to ready the case for trial. People v Tutton, 128 Mich. App. 412; 340 N.W.2d 649 (1983). Preliminary steps to bring the case to trial within the 180-day period may not be followed by an inexcusable delay beyond the 180-day period which evidences an intent not to bring the case to trial promptly. People v Hendershot, 357 Mich. 300; 98 N.W.2d 568 (1959); Tutton, supra; People v Atkinson, 120 Mich. App. 723, 732-733; 328 N.W.2d 102 (1982), (ROBINSON, J., concurring). In this case, as evidenced by the appointment of counsel for defendant and the subsequent pretrial conferences, there was some action directed toward bringing defendant to trial. Unfortunately, that action was not followed by any attempt to set a trial date or to have defendant rearraigned on the charge upon which he was to be tried. Instead, had the trial court not acted on its own to finally set a date for trial, it is possible that a trial date would not have been set for many more months. We recognize that this crucial inactivity was due to both the prosecution's and the defense's interest in reaching a satisfactory plea bargain. However, such mutual responsibility cannot entirely eliminate the prosecution's long-recognized obligation to bring the case promptly to trial:
"Prior decisions of this Court indicate that the ultimate responsibility for going forward with a case falls on the prosecution, even if delay results, for example, from the illness of the trial judge. * * * In addition, the delay may not be blamed on inaction of the defendant, who is not required to demand a speedy trial in order to preserve his right to a dismissal." People v Forrest, 72 Mich. App. 266, 270; 249 N.W.2d 384 (1976). (Citations omitted.) See also People v Hill, 402 Mich. 272; 262 N.W.2d 641 (1978); People v Farmer, 127 Mich. App. 472, 477; 339 N.W.2d 218 (1983).
As in People v Pitsaroff (On Remand), 127 Mich. App. 230; 338 N.W.2d 193 (1983), we find it significant that, despite the ongoing plea negotiations, the case was neither scheduled for trial nor set for a time for defendant to plead until long after the 180-day period had passed. Finally, we find that the purported waiver of defendant's speedy trial rights is irrelevant except for its indication that the desire to reach a plea bargain was mutual. Under these circumstances, we hold that the 180-day rule has been violated and, therefore, vacate the judgment of the trial court and dismiss with prejudice the charge against defendant.
Case dismissed.