Opinion
Docket No. 58089.
Decided March 14, 1983.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Edward J. Grant, Prosecuting Attorney, and John L. Wildeboer, Chief Appellate Attorney, for the people.
State Appellate Defender (by Terence R. Flanagan), for defendant on appeal.
Before: T.M. BURNS, P.J., and BEASLEY and J.H. GILLIS, JJ.
ON REMAND
On appeal, this Court reversed defendant's conviction and dismissed the charges for violation of the 180-day rule, MCL 780.131; MSA 28.969(1). On application for leave to appeal by the prosecutor, the Supreme Court, on May 27, 1981, issued an order vacating the Court of Appeals decision and remanding the case to us with a direction to remand the matter to the circuit court for the making of a testimonial record concerning the reasons for the delay between defendant's arraignment and the date of the guilty plea. That remand was made and the required hearing was held in the circuit court. Subsequently, the transcript of that hearing was prepared and filed with this Court.
102 Mich. App. 226; 301 N.W.2d 858 (1980).
411 Mich. 941 (1981).
The transcript indicates that counsel for defendant testified that the assistant prosecutor told him at the date set for the preliminary examination that the proposed plea would have to be made at the time of arraignment in circuit court. That prosecutor, referred to as Mr. Ray, said that he did not have any authority to extend the plea-bargained offer beyond the date of circuit court arraignment. Defense counsel was directed to Joseph Filip, the Chief Assistant Prosecuting Attorney, who told him that the prosecutor's office would review the case involving the codefendant, Patricia Jones, and would decide on a plea offer to defendant after decision on a plea for Patricia Jones. Filip was alleged to have told defense counsel that at that time defendant could either accept or refuse the plea offer that would be made.
Defense counsel testified that Filip did not specify the precise crime to which defendant could offer a plea. Between July 11, 1978, the date of the circuit court arraignment, and March, 1979, no contact was made by the prosecutor's office with defense counsel. In January, 1979, defendant made a written request for a speedy trial. Defense counsel said in so many words that the purpose for the delay was to determine what happened to Patricia Jones and, therefore, to determine if defendant would receive a better deal.
The burden was on the prosecutor to justify the long delay in bringing defendant before the court to plead. The prosecutor claims that defendant requested the delay for the purpose of hoping that he would receive a better offer of a plea. However, the record does not support the conclusion that defendant requested a delay. Neither does the transcript indicate that the prosecutor offered defendant a plea to a specific offense before expiration of the 180 days.
People v Forrest, 72 Mich. App. 266, 273; 249 N.W.2d 384 (1976); People v Wright, 89 Mich. App. 244, 250; 280 N.W.2d 836 (1979); 1 Gillespie, Michigan Criminal Law Procedure (1979 rev ed), § 98, p 155.
While there was discussion between defense counsel and the prosecutor's office regarding a possible plea, the fact is that after the circuit court arraignment, 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.
Under these circumstances, we are not prepared to conclude that this long delay was occasioned by the request of the defendant. On the contrary, we hold that the prosecutor has failed to meet his burden of proof to establish adequate reason for the delay. We, therefore, grant defendant's motion to dismiss for failure to comply with the statutory 180-day rule.
See People v Parker, 21 Mich. App. 399; 175 N.W.2d 879 (1970), where we held that the prosecutor's failure to comply with the "180 day rule" resulted in the trial court being without jurisdiction to accept the defendant's guilty plea.
Reversed and the case dismissed.