Opinion
Docket No. 54438.
Decided October 7, 1981. Leave to appeal applied for.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Edward J. Grant, Prosecuting Attorney, and John L. Wildeboer, Chief Appellate Attorney, for the people.
Sheila N. Robertson, Assistant State Appellate Defender, for defendant on appeal.
Defendant, Robert L. Hall, appeals his plea-based conviction for possession of heroin, MCL 333.7403(1), (2)(a)(iv); MSA 14.15(7403)(1), (2)(a)(iv). Hall, who was imprisoned on another offense, was sentenced to a consecutive term of imprisonment of from two to four years.
On February 25, 1979, while Hall was incarcerated in the State Prison of Southern Michigan, he was approached by a guard for a shakedown. Hall initially refused but later went with the guard to the yard shack where he underwent the search. The guard found heroin in Hall's jacket pocket.
On May 30, 1979, Hall stood mute at his arraignment on charges of possession of heroin and a plea of not guilty was entered by the court. On July 6, 1979, the prosecutor gave notice of filing a fourth felony offender charge, MCL 769.12; MSA 28.1084. A plea of not guilty was entered for defendant when he stood mute at his July 17, 1979, arraignment on the fourth felony offender charge.
On July 9, 1980, defendant pled guilty to the possession of heroin charge and the prosecutor dismissed the fourth felony offender charge. Prior to sentencing, Hall moved to withdraw his guilty plea of all charges against him claiming the prosecutor had failed to comply with the 180-day rule, MCL 780.131; MSA 28.969(1). During the sentencing proceedings, the court denied defendant's motion and sentenced him. Defendant appeals claiming the prosecutor's failure to comply with the 180-day rule requires reversal of his guilty plea.
The 180-day rule is stated in MCL 780.131; MSA 28.969(1):
"Whenever the department of corrections shall receive notice that there is pending in this state any untried warrant, indictment, information or complaint setting forth against any inmate of a penal institution of this state a criminal offense for which a prison sentence might be imposed upon conviction, such inmate shall be brought to trial within 180 days after the department of corrections shall cause to be delivered to the prosecuting attorney of the county in which such warrant, indictment, information or complaint is pending written notice of the place of imprisonment of such inmate and a request for final disposition of such warrant, indictment, information or complaint. The request shall be accompanied by a statement setting forth the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time earned, the time of parole eligibility of the prisoner and any decisions of the parole board relating to the prisoner. The written notice and statement provided herein shall be delivered by certified mail."
Failure to comply with this rule divests the circuit court of jurisdiction. MCL 780.133; MSA 29.969(3).
Currently, there is a split of authority in this Court concerning whether the 180-day rule applies to persons who commit offenses during their incarceration. In People v Loney, 12 Mich. App. 288, 293; 162 N.W.2d 832 (1968), this Court found that the 180-day rule did not apply to offenses committed while in prison. Finding MCL 780.131; MSA 28.969(1) ambiguous, the Court wrote:
"The purpose of the statute is clear. It was intended to give the inmate, who had pending offenses not yet tried, an opportunity to have the sentences run concurrently consistent with the principle of law disfavoring accumulations of sentences. This purpose, however, does not apply in the instance of a new offense committed after imprisonment, nor where the statute, as in the case of an escape or attempted escape, sets up a mandatory consecutive sentence. The legislature was not concerning itself with the need for dispatch in the handling of a charge brought against an inmate for offenses committed while in prison." 12 Mich. App. 288, 292. (Emphasis in original.)
The rule announced in Loney was apparently followed until a panel of this Court decided People v Moore, 96 Mich. App. 754; 293 N.W.2d 700 (1980). In Moore, the Court found that the statute was unambiguous and applied to prison inmates who committed a crime during their incarceration. Id., 761. Citing People v Hill, 402 Mich. 272, 280; 262 N.W.2d 641 (1978), the Court stated that the purpose of the 180-day rule was to "secure to state prison inmates their constitutional right to a speedy trial". Moore, supra, 761. Because the defendant's right to a speedy trial did not depend upon whether the charged offense was committed prior to or during incarceration for another crime, the Court rejected the rule announced in Loney. Id., 761-762.
This split in authority was addressed in People v Ewing, 101 Mich. App. 51; 301 N.W.2d 8 (1980). Examining the statute, the Ewing panel found that the notice provision of the statute, which required the Department of Corrections to notify the prosecutor of defendant's place of imprisonment, would be meaningless if the 180-day rule was meant to apply to crimes committed by prisoners while incarcerated. Id., 59. This notice requirement would be superfluous where an offense was committed after incarceration because the prosecutor would be aware of defendant's location when the warrant was issued. Id., 59. Therefore, the Court found the reasoning used in Loney, supra, to be more persuasive. Id., 58.
After examining the statute, we find the reasoning used in Loney, supra, and Ewing, supra, to be more persuasive. If we were to accept the reasoning used in Moore, supra, the notice provision contained in the statute would be meaningless. Moreover, the Loney interpretation of the 180-day rule accurately reflects a reasonable legislative intent to preserve and encourage the practice of concurrent sentencing when appropriate. Because Hall committed the offense of possession of heroin while he was incarcerated, the 180-day rule does not apply and his conviction is affirmed.
Affirmed.
N.J. BAGULEY, J., concurred.
I respectfully dissent.
As the majority indicates, the 180-day rule was violated. No showing was made which would justify the delay. In accordance with People v Moore, I would reverse defendant's conviction and dismiss the charge. The question is one of statutory interpretation. I am not inclined to believe the statute was intended to except offenses committed by inmates from the benefits of the 180-day rule.
96 Mich. App. 754; 293 N.W.2d 700 (1980). Also see People v Pitsaroff, 102 Mich. App. 226; 301 N.W.2d 858 (1980).