Opinion
Docket No. 70517.
Decided October 16, 1984.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, John D. O'Hair, Prosecuting Attorney, Edward Reilly Wilson, Deputy Chief, Civil and Appeals, and Jeffrey Caminsky, Assistant Prosecuting Attorney, for the people.
Alice B. Rucker, for defendant on appeal.
Following a waiver of the right to a jury trial, defendant was convicted on September 15, 1980, following a bench trial of resisting and obstructing an officer, MCL 750.479; MSA 28.747. He was sentenced to five years probation but his conviction was reversed on appeal and the cause was remanded in People v Williamson (Docket No. 54862, decided January 21, 1983 [unreported]).
On remand, defendant moved to dismiss the charge on the basis that any further prosecution had been rendered moot. Defendant argued and the trial court agreed that, because the statute under which he was convicted imposed a maximum punishment of two years imprisonment and/or a maximum fine of $1,000 and because defendant had served two of his five years probation sentence in an exemplary manner, there was no reason to further prosecute defendant on this charge. Defendant's motion to dismiss was granted over the prosecution's objection. We reverse.
Trial courts may dismiss criminal charges over the prosecutor's objection only where permitted by statute or where there is an insufficiency of the evidence. People v Augustus Jones, 94 Mich. App. 516, 519; 288 N.W.2d 411 (1979); People v Morris, 77 Mich. App. 561, 563; 258 N.W.2d 559 (1977), lv den 402 Mich. 844 (1977). The issue here is whether the trial court was authorized under the nolle prosequi statute to dismiss the charge in this case. MCL 767.29; MSA 28.969 provides:
"A prosecuting attorney shall not enter a nolle prosequi upon an indictment, or discontinue or abandon the indictment, without stating on the record the reasons for the discontinuance or abandonment and without the leave of the court having jurisdiction to try the offense charged, entered in its minutes."
The general rule is that only the prosecutor has the authority as part of the executive function to initiate a nolle prosequi, though entry of the order is subject to the approval of the courts. Genesee Prosecutor v Genesee Circuit Judge, 391 Mich. 115; 215 N.W.2d 145 (1974); People v Nelson, 66 Mich. App. 60, 64; 238 N.W.2d 201 (1975). This Court has held, however, that in limited circumstances a trial court may enter a nolle prosequi on its own initiative, over the objection of the prosecutor. Where the trial court finds that the prosecuting attorney or the examining magistrate has abused his or her discretion in proceeding against the defendant, a nolle prosequi may be entered. Nelson, supra, pp 65-66, citing Genesee Prosecutor, supra.
In this case, the trial court dismissed the charge against the defendant without finding any abuse of discretion on the part of the prosecutor. The trial court's sole reason for dismissing the charge against the defendant related to the time served by the defendant on probation pending the first appeal. This ground was not sufficient to justify the trial court's dismissal of the charge over the prosecutor's objection. Compare People v McCartney, 72 Mich. App. 580; 250 N.W.2d 135 (1976).
On remand, defendant is faced only with the information charging him under MCL 750.479; MSA 28.747. Although defendant was originally charged with felonious assault, MCL 750.87; MSA 28.282, the prosecution amended the information at trial reducing the charge to resisting and obstructing an officer in the execution of an ordinance.
Reversed and remanded.