People v. Pummer

v PUMMER PEOPLE 4). (Calendar 5, April No. Argued No. Docket 57200. Decided 31, December 1976. by jury in a Jackson Circuit Robert G. Pummer was convicted J., Court, Britten, first-degree murder. trial The Gordon W. ground trial on the the instruc- court later a new Appeals, Quinn, jury The Court of tions to the were erroneous. Bronson, JJ., J., people’s McGregor dismissed the P. and and ground that ho statute autho- from that order (Docket 19275), people interlocutory appeal No. rized the people appeal. Held: The litigants, Appeals prosecutor, those of all other like governed by Act of 1961 áre tules, the Revised Judicature right; appealable interlocutory Final are granted. granting order leave An orders non-final, order; therefore, new is a correctly applying prosecutor proceeded Appeals. deci- Reversed remanded to the Cotirt of for a on the issues. sion substantive Justice, Kavanagh ground on the that an Chief dissented for a is not order a motion new trial included people allowing statute limited Court power Appeals in The has the criminal cases. Superintending respect to issue order of control Of particular scope in an actual case. The nature and error mandamus, prohibition define former writs of certiorari and superintending the boundaries of the Court extraordinary provides Control. An writ an efficient means of [8-5, 12, [1, [6 14]— [2] 47 ^[15] Superintending Constitutionality cáSeS. 73 Am Jur Am Jur 9, 10, 13] Am Jur 157 ALR 1065. 12-15] 2d, Judgments Am Jur 2d, References 2d, control over Statutes 271§ 4 Am Jur Courts 2d, Motions, §§ 111 et permitting appeal by inferior 2d, Points et Appeal seq. Rules, seq. tribunals. in Headnotes and Error and Orders 3.§ 112 ALR §§ state in criminal 267, 268. v Pummer questions, resolving legal jurisdictional without the need of appropriately ancillary more resolved determinations factual by appeal. discretionary of the trial determination court to upon jury instructions to the a new erroneous trial based allowing a writ Ofcértio- does not ñt within the circumstances and, superintending accordingly, control rari is not an order Appeals. available from the Court Kavanagh with Chief Justice Justice Levin concurred appealable, granting is not motion for a new trial the order a declaring join an order but that such not be did not power Appeals in the exercise of its reviewed superintending is not because the issue before the control Supreme Court. separate holding a dissent to the Justice Levin also wrote appeals prosecutor governed by the are the Revised Rules of 1963. The Judicature Act and the General Court cases holding appeals relied on for that were from final orders and binding question pre'cedentially on the whether the are not prosecutor interlocutory may appeal order. The Judicature Act could be Act of 1915 and the Revised Judicature construed covering appeals by literally the but such a as history of the construction is inconsistent with the statutes and pattern jurisdictions separate specific and other of a statutory provision prosecutor appeals. By the decision in prosecutor appeals specific provision for read off this case the Appeals operation the statute books. The Court of has been in years, holding adopting for 12 but this is the first that in governing Rules the amendments to the General Court Appeals Supreme to the Court of Court determined enlarge Appeals jurisdiction and of the Court to allow prosecutors granting if an order a new trial. Even the gives Supreme authority Revised Judicature Act Court the enlarge by jurisdiction Appeals rule the of the Court of not, prosecutor appeals, Supreme until consider Court has now, expands authority, exercised that and now analysis. of the Court of without (1975) App 61 Mich 233 NW2d 79 reversed. Opinion Appeal Appeals. 1. Criminal Law — and Error —Court Appeals by the from a criminal case to the Court Of people litigants, governed like of all those are Revised Judicature Act of 1961 and court rules: final appealable right, interlocutory orders are 806). (MCL 27A.308; by leave MSA GCR Judgment. Appeal 2. Criminal Error —Final Law — case, following A in a criminal final is not reached sentence, conviction, pronounces a until which leaves (MCL 600.308; nothing but enforcement MSA to be done 806.1). 27A.308;GCR Appeal 3. Error —Motions—Final Orders. adjudications upon applica-

Final motions or other orders are tions, upon pleadings proofs, involving hearing but collateral, upon interlocutory whereby other issues some off, definitely supposed right party liability cut or some of a him; precludes any fixed the matter and if it closes (MCL 600.308; hearing investigation further it is final MSA 806.1). 27A.308; GCR Appeal Trial. Criminal Law — and Error —New non-final, order; An a new trial is therefore, people apply for must (MCL from such an order in a criminal case 806.2). 27A.308; Opinion

Dissenting Kavanagh, C. J. Appeal

5. Criminal Law — and Error —New Trial. An order a new trial is included within the statute allowing appeals by people Appeals limited to the Court of (MCL 28.1109). in criminal cases Superintending 6. Courts — Control —Jurisdiction. Supreme general superintending The Court has control over all courts, Appeals power the state but the Court of to issue an superintending only respect particular order of control of a (Const 711). error an actual case art Appeals Jurisdiction—Extraordinary 7. Courts —Court of — Writs —Superintending Control. scope mandamus, The nature and of the former writs of certiorari prohibition Appeals deñne the boundaries of the Court of (GCR 711). superintending order of control Extraordinary 8. Courts — Writs —Remedies. peremptory among potent common-law writs are the most weapons judicial arsenal; they extraordinary remedies really extraordinary are reserved causes. v Pummer Appeal Extraordinary Writs. Criminal Law — and Error — 9. rightly appellate discretion An exercise its to issue a court cannot statutory only avoid conditions of writ whose effect would be to Legislature’s policy against appellate thwart review and piecemeal appeals in criminal cases. Appeal Extraordinary Writs —Criminal Law. and Error — accomplish by permitted certiorari what The state not be case; by appeal it in criminal state cannot do prosecute case exists when it is error in a criminal conferred statute. Superintending Appeal Error — Control— 11. Criminal Law — New Trial. that a defendant in a criminal The determination a trial court the instructions to the case was entitled to a new trial because jury not St within the circumstances were erroneous does and, accordingly, super- allowing grant an of certiorari intending prosecution from the is not available to the control 711). (GCR1963, Opinion Dissenting Levin, J. headnote 5.

See Appeal Error —Prosecutor —Con- 12. Criminal Law — struction of Statutes. reading to the Revised Judicature A literal of the amendments establishing and of Act following adopted by Supreme establish- the rules Appeals permits the construction that of the Court of ment they govern appeal by a from an history of not consonant with the order but that construction is providing separately provisions statutory pattern of or the prosecutor appeals; Act of 1915 could have the Judicature appeals by prosecutors, literally but to allow been construed speciñc separately treated in a such were (MCL 770.12; in effect and amended later and still enacted 28.1109). MSA Jurisdiction—Appeal and Error. 13. Courts — jurisdiction of the Revised Judicature Act establishes The Appeals, providing from ñnal for Court authorizing Supreme judgments, to determine within orders rule the other 399 Opinion of the Court (MCL 600.308, jurisdiction Appeals of the Court of 27A.309). 27A.308, MSA Jurisdiction—Appeal 14. Courts — and Error —Court Rules. appeal The in the basic is to be found statutes and law, general common and the court rules relate to the except procedures appeal, explicitly methods and set out 801.1). (GCR1963, in the rules Appeal 15. Criminal Law — and Error —Prosecutor —New Trial. has, Procedure, Legislature of Criminal Code deñned scope appellate rights prosecutors, of the which does not prosecutors trial; allow a new Constitution, prerogative Legislature under the it is the (Const provide jurisdiction the Court of 28.1109). 6, §10; art MCL Frank Kelley, Attorney Robert A. General, Derengoski, Barton, Bruce A. General, Solicitor Justin, M. James Prosecuting Attorney, As- sistant Prosecuting people. for the Attorney, Appellate

State Defender Office John B. (by Phelps) for defendant. Durance,

Amicus Curiae: Edward G. Midland County Prosecuting Attorney, Prosecuting Attorneys Association Michigan. J. Defendant was convicted of first-

Williams, murder, degree sentenced, but before he was judge granted his motion for new trial. The prosecutor sought leave to appeal grant- the order ing new trial and made specific reference to our Blachura, opinion (1973), NW2d which affirmed the to grant leave to from an order granting a new trial. After the Court of Appeals granted prosecu- appeal, tor leave to the parties briefed issues People v Pummer 331 Opinion op the Court the trial relating judge’s in- propriety structions After submission jury. formal argument, oral the Court concluded improvidently and dis- missed the The Court of appeal. relied Martin, People v App 471; 59 Mich 229 (1975), resurrecting NW2d 809 MCLA MSA 28.1109, and provision found included in "[n]o authorizing appeals by people from an a new trial”. 61 Mich granting App (1975). 553; 233 NW2d 79 prosecutor Shortly thereafter we held that could order of appeal as of an the circuit information, judge quashing since it "was a final pretrial Jack- of the circuit court”. decision son County Appeals, v Court of Prosecutor 394 (1975). 527, 528; Mich In 232 NW2d 172 so doing, Martin, supra. we expressly overruled On the same we day, prosecutor’s entered an order case, application in granting leave to consider whether could an order by leave”, new trial "as of (1975). Mich

In light of Blachura and Jackson County Prose- cutor, supra, there should remain question little that appeals by prosecutor, like those all litigants, governed are MCLA 27A.308, and rules formulated our Court. Final appealable are right, GCR 1963, 806.1; orders leave, 806.2. Pickett,

In People v (1974), NW2d 695 we accepted our earlier-stated standard that: "An ultimate or final is not reached case, following conviction, pro-

criminal nounces a until sentence, nothing which leaves to be done Mich 326 Dissenting Opinion C. J. Kavanagh, Fisher; 504, 506; but enforcement.” 212 NW Campbell stated: earlier, Chief Justice Even adjudica orders are as final "But are known what involving not applications, upon other tions motions or upon proofs, hearing pleadings but other upon a and collateral, whereby sup some interlocutory issues posed off, definitely cut or some party is of a if Usually, always, not an liability upon him. fixed hearing final if made made side order on such a whereas, the decision had been if way; in a certain interlocutory; an while it have been otherwise would party is If favor of either final. made in absolute decree the final, opens generally not a case it is decision of a motion acquired a some under unless it cuts off precludes any further If it closes the matter and decree. Kingsbury Kings v hearing investigation it is final.” 212, bury, Mich a new trial a non- Clearly, order an Therefore, final, Bla- order. under ura, proceeded correctly apply- ck Appeals. to the Court of to ing leave of the Court therefore reverse the We on for a decision and remand the cause prosecutor. issues raised the substantive 1963, 866, the with GCR In accordance herein shall be pursuant decision this filing immediately issued entered and opinion. JJ., Lindemer, Ryan, Fitzgerald, Coleman, and Williams, concurred with a

Kavanagh, C. J. Defendant was convicted February, degree of murder first jury mo- sentencing, made a to defendant 1973. Prior trial, on motion for a new which tion People Pummer v Kavanagh, Dissenting Opinion by C. J. 1973, 5, trial judge concluding November "the instructions were such nature as to generally unduly empha- confuse and to jury murder size relation the discussion of the possible instructed, there verdicts as well as de-emphasize if make impossible, not a finding * * * guilty insanity reason appears injustice to the rights manifest "[I]t * * * have defendant well resulted this court grants new the defendant.”

A 11, new trial date of March 1974 was set. The filed prosecution application for leave to appeal Court of Appeals, and a motion stay Blachura, proceedings, relying (1973), NW2d 806.2. The Court of Appeals granted the motion application February argued case was January and the Court of Appeals requested supplemental briefs on question of its hear jurisdiction to the appeal. Both sides filed this question. briefs on

In per opinion curiam dated May Court of Appeals held that to leave had been improvidently granted, People on relying v Martin, (1975). 471; 59 Mich App 229 NW2d 809 (1975). Mich 233 NW2d App 19, 1975,

On August granted Court prosecution’s motion to stay proceedings granted to appeal leave to the questions "limited the appealability of Appeals, Court leave, right or of a grant a motion for a new cáse, in a criminal whether such a is reviewable Mich superintending control”. 394 Arguments were presented on those questions April,

We affirm. 399 Mich Kavanagh, Opinion by Dissenting C.

I is this case con- stating that begin by We Blachura, Blachura, supra. In by trolled counts perjury. on six indicted defendant was being defendant con- with jury The trial ended Defendant six counts. moved yicted on five granted was trial, a new trial a new being counts, remaining three dis- two with prejudice. with missed Court granted leave to this Appeals. Defendant was " the narrow issue of 'only consider jurisdic- or not the Court

whether 331, 332. pp tion’ in this matter”. 390 agreed All answer seven justices i.e., affirmative, presented was in the question in this matter”. "had written in Blachura disagree opinions The two concerning the reasons aspects various thereto, limits but none of and the jurisdiction, to the decision of necessary that discussion was presented. the "narrow issue” provides perti- MSA 28.1109 MCLA nent part: by and on behalf of the "A of error be taken writ * * * instances, following to wit:

people "(a) setting quashing judgment or or From a decision information, any count or any indictment aside thereof, is based where such decision upon which of the statute invalidity or construction founded; or information is such indictment "(b) arresting judgment of convic- From a decision acquittal insuffi- directing judgment tion or indictment, ciency decision is based where such invalidity of the statute upon or construction founded; or indictment information is which such

"(c) sustaining spe- the decision or From v Pummer Kavanagh, Dissenting Opinion by C. J. plea bar, put when the defendant has not

cial been order of the jeopardy, any or court proceedings or relative made ardy.” admission evidence had or any put jeop- at time before the defendant That prosecution’s is the extent of the appeal an Appeals. Because granting a motion for a new is not included 28.1109, 770.12; appeal within MCLA MSA will lie. 1963, prosecution argues Const art (RJA §10, and MCLA 27A.308 806.2(2) 308), supersede and GCR previ- § ously cited on statutory prosecutorial limitations appeals. disagree. We

Const provides juris- art that "The diction of the shall appeals provided court be law and the practice procedure therein shall prescribed supreme rules of court.” provision,

Pursuant to this constitutional MCLA (RJA §308) enacted, MSA 27A.308 providing: appeals

"The court of from: * * * "(1) judgments All final from the circuit courts "(2) judgments Such other orders as supreme may by rule determine.” 1963, 806 provides: ".1 Appeal Right. all criminal In and civil matters, aggrieved party shall have a from all final or final orders from the circuit * * * courts . Appeal ".2 appeals may grant Leave. The court * * * leave to from: "(2) order, Any judgment, act failure to act 326 336 399. Mich Kavanagh, Opinion by C. J. Dissenting *** judgment final courts, not a which is circuit appealable right.” as of defend-

No contention is made that is a final motion new trial ant’s for a ap- a to prosecution final order giving v Prosecutor County See Jackson peal. 527; (1975); 172

Appeals, NW2d Mich Pickett, NW2d People 1963, 806.2(2), RJA 308 and Neither GCR nor §§ eliminate the "thoughtlessly were intended and de- traditional distinction between Blachura, supra, p 340 People v appeals”. fendant J., concurring). (Levin, Relating Ap- Criminal

The ABA Standards Draft, 1970), do not provide 1.4 peals, (Approved grant- a appeal judge’s from trial prosecution new ing of a trial. likely acted a claim of

"The trial court has proceedings the defense could have error in which appeal, judge the trial denied the motion. raised on had sense, lost seek a prosecution In a the chance to higher unless ruling question on the from tribunal up the matter it appellate has the to take now hand, court. the other trial court On ruled conten- possibly could have in favor of the defense * * * during If in- trial rather than after trial. tions jury questions were structions or other trial defendant, hand- initially in favor of the decided ful permit prosecution from of states would clear, It there- to the defense. is not verdict favorable fore, provisions post-trial that broad Id, necessary p orders are sound.” no there is in MCLA provision Because allowing the prosecution MSA 28.1109 court, hold of a new trial trial we grant v Pummer Kavanagh, Dissenting Opinion by C. J. the order is not Appeals.

II Having held a new is not Appeals, of we turn to the consideration of the prosecution whether can seek superintending an order of control from the Court of the trial court’s challenge of a motion for a new trial. 711.4 provides Court of

Appeals, Court, well as as this and the circuit "jurisdiction courts have to issue superintending control orders to inferior courts”. While this Court general has superintending control over all courts, 6, §4, state Const art the Court of power superin- has to issue an order of tending control "in of a respect particular * * * Morcom v Record- ”, error an actual case Judges, er’s Court 358, 360; Mich App 166 (1968). NW2d 540 Genesee Prosecutor v also See Genesee Judge, Circuit 672; 194 NW2d (1972). provides

GCR 711.3 that superintending control be used in place the former writs of certiorari, mandamus, prohibition.

The nature and scope the former define writs boundaries order of superintending control. Accordingly, such orders are only concerning legal questions available would been formerly have reviewable manda- mus, certiorari or prohibition. Genesee Prosecutor Judge, Circuit supra. Any Genesee inter- pretation expansion of availability su- perintending control would do the dis- away with tinction between these writs and extraordinary KAyAN&GH, C. J. Dissenting Opinion provides writ extraordinary appeals. ordinary An resolving legal jurisdic- efficient an means of ancillary the need questions, without tional appropriately more re- determinations factual peremptory appeal. solved "The common-law weapons potent among the most writs remedies, they extraordinary arsenal. judicial 'As causes.’ extraordinary Ex really are reserved for 1558; Ct 258, 260 S L 332 US parte Fahey, [67 (1947).” States, 389 US United Ed Will v 107; 88 S Ct 19 L Ed 2d I, supra, in Part Additionally, we stated types Legislature limited cases carefully Ap- prosecution may appeal control superintending If an were peals. pre- such as alleged errors available review case, the specific the instant limitations sented nullified. effectively would condi- establish the "Where statutes review, can- appellate appellate tions of to issue a writ rightly not exercise its discretion those to void conditions only whose effect would be against piece- [Legislature’s] policy and thwart Evapo- meal in cases.” Roche v criminal Association, 21, 30; 938; 63 Ct rated Milk 319 US S (1943). L87 Ed 1185 permitted accomplish by not State should "The be appeal. right The of the

certiorari what it cannot do only prosecute error in a criminal case exists State to when such * * * is conferred statute. has no of from "Where State trial, could granting defendant a new certiorari order up bring To the matter not as a substitute. certiorari, accomplish be to indirection would permit.” State v expressly the statute does not what (1969) 747; Paul, cert den 461 P2d 80 NM (1970). US Pummer v Levin, Dissenting Opinion by J. Todd, Accord, State v 224 NC SE2d 313 this, In the case such writ arguably have been formerly would available However, would be of certio- "The writ certiorari. rari is errors inquiry review our law determining tribunal, 'if the inferior limited made, had jurisdiction, record whether proceeded not it exceeded that ” Genesee Prosecutor Genesee according law.’ Judge, Circuit supra, p 681.

The discretionary determination trial grant a new trial due to his belief his instructions or confusing were erroneous not does fit allowing within the circumstances of a certiorari, and, writ of accordingly, an order superintending is not control available Court of Appeals.

The opinion of the Court of affirmed. is remanded cause for trial. J., concurred in I part opinion Levin, C. J. Kavanagh, (dissenting). part I concur I of the

Chief dissenting opinion, Justice’s which would hold that an order new to a defendant a criminal case is not appealable. I II, not joined part have which declares that such an be reviewed by the Court power exercise of its of superin- tending control. That issue is not us.1 The before sought obtained super- from the and did not seek intending control. 4; 27A.310; See art Const MCLA GCR

1963, 711.4(1). Mich Dissenting Opinion by opinion response separately I write the Court.

I The Court declares: 326; light [People "In Blachura [390 v] County (1973)] Prosecutor v

NW2d 182 and Jackson (1975)], 232 NW2d 172 Appeals, 394 Mich [Court there question appeals by that little should remain litigants, governed are prosecutor, like of all other those 27A.308, and rules formulated 600.308; MSA MCLA appealable as are by our Court. Final appeal- 806.1; interlocutory orders are right, GCR leave, 1936, 806.2.” able County If Prosecutor Blachura Jackson obliged join dispositive I were would disposition They not, however, of the Court. controlling.

In had Blachura the Court of appeal from an order of the trial court leave to dismissing prejudice quashing three with granting a new trial counts of an indictment opinions, signed by In one four on two counts. two agreed justices three, we all that and another grant jurisdiction had agreed from what all final leave holding.2 was the order. That wrote, signed justices, opinion by three which I would have Appeals to so of the trial review the Court of much limited the in effect the three counts and would have court’s order modified the review the dismissed possible grant might insofar as it have made of a new trial. leave, modify majority granting it does did not the order While held not Appeals Court considered and follow from an to hear a new trial. defendant People v Pummer Opinion Levin, Dissenting J. County

The reliance on Jackson Prosecutor is In that case the circuit misplaced. judge also quashed ground information on the the had under which the defendant been statute charged 'too and thus was "was broad’ constitu- tionally the defective”. Even before establishment of the Court amendment of and the establishing jurisdic- Revised Act its Judicature tion, the the right had a under Code of Criminal an order dismissing Procedure ground an information on the unconstitutional- thus, Jackson County ity.3 was, in There no issue Prosecutor regarding the Court appeal. to entertain The issue was appealable right whether order was as of or on granted. We held that because the order dismissing the information final it appeal- was right.4 able as of

Both Blachura County Jackson Prosecutor provides: The statute people “A writ of error be taken on behalf of the Michigan any state of from court of in record said state direct to the supreme thereof, cases, following in all criminal in- stances, to wit: “(a) judgment quashing setting any From or a decision or aside information, thereof, any indictment or or count where such decision judgment upon invalidity or is based or construction of the upon founded; statute which such indictment or information “(b) arresting judgment directing From a decision a of conviction or acquittal indictment, insufficiency a of the where such invalidity upon decision is based of the construction upon founded; which such indictment or information "(c) judgment sustaining special plea bar, From the decision or put jeopardy, any when the been defendant has not proceedings order of the court relative to admission of evidence or any put jeopardy. had or made at time before the defendant is “The defendant to bail of writ issuance of error provisions governed provi- under the of this section shall chapter 770.12; sions of 5 of this act.” MCLA MSA 28.1109. quashing "The act of the circuit court in the information in this pretrial court, case MSA Appeals, awas final decision of the circuit MCLA 27A.308, which shall be County MCLA MSA 27A.309.” Jackson Prosecutor v Appeals, 527, 528; 394 Mich 232 NW2d 172 Dissenting Opinion are not prece- appeals from final orders were of whether dentially binding question on the order,® appeal an prosecutor may II opinion in Bla- reasoning prevailing lan- judgments” "All final chura focused on the 6 Act as of the Revised Judicature amended guage5 of Ap- the Court of jurisdiction to establish the right.8 judgments Final peals.7 is order. An a new trial See (2d ed), Hawkins, p Honigman Michigan Rules Annotated Court & accompanying authors’ Rule 527. comments 6"600.3Q8 pursuant constitutional written was that direction. constitution, 1963, 801, pro adopted pursuant to the new also Appeals’ 'Statutory of Court 3 which is headed Jurisdiction vides of repeats judgments.” language final of It refers to all and (Emphasis the 600.308. Court.) Blachura, 334-335; People the v (1973). 212 NW2d 182 forth in directive the set 600.308 "Pursuant this Appeals jurisdiction providing part for Court over 'all enacted final ” Blachura, supra, judgments.’ People p opinion the the prevailing did not declare that section of While the prosecutor appeals, authorizing Procedure Code MCLA Criminal 770.12; 28.1109, superseded by the amendment to the MSA had been establishing jurisdiction of the Revised Appeals, concededly, Act Court Judicature 27A.308, was, that 1964 PA MCLA MSA It has said, reasoning. tendency of however: been court, judge reasoning opinion that of but of the "The in an is may prepares may or and delivers it. It not be considered sound who and conclusion arrived discussed the supposed unanswerable, subject and as is the of criticism. The such upon questions at and the several announced case, disposition proper and essential court, generally concurring in it is not and in such conclusions everything the the or said in understood that contained unquestionably adopted opinion opinion thereby unqualifiedly and as Starkweather, of the court.” Larzelere v 100-101 appeals appeals from: "The court of "(1) courts, claims, judgments circuit court of All from the final court, except judgments on ordinance violations recorder’s traffic and ordinance final division of recorder’s court. from for ordinance all other courts and from convictions from iji court the traffic and ordinance division of recorder’s violations shall be taken to courts, review the circuit which further ofily application appeal granted by up.on court had for leave v Pummer Dissenting Opinion on the posits jurisdiction Court today com of the Revised Act panion provisions Judicature as authorizing from amended "interlocu so may by rule supreme as the orders court tory added) provisions (emphasis determine” authorizing of' the rule any order of the leave to judgment appealable court "which is not a final right”.10 a literal Although amendments to. reading establishing juris- Judicature Act Revised diction of the Court of Appeals and of the court adopted following rules the establish- Appeals permits of the Court of ment the construc- placed today provisions, on those con- tion struction is not consonant with the history of these provisions or the statutory pattern in this jurisdictions11 providing separately prosecutor appeals. 27A.308; of appeals.” MCLA 1964 PA as amended PA 116. 8 MCLA MSA 27A.309. 9 appeals court "The has from: "(2) judgments Such other supreme orders as the may by 27A.308; rule determine.” MCLA 1964 PA may 10“The Court of appeal leave to from: order, Any judgment, “(2) Courts, act or failure to Circuit act the. Claims, Court, except and Recorder’s

Court in the Traffic not a final on ordinance violations Court, Ordinance Division of Recorder’s which is and 806.2(2). judgment right.” jurisdictions prosecutor 11 appeal (Tex at all In some Const, Const, appeal art 26. Cf. Va § to the § [no art "allowed life, pr person, involving liberty in a a case Commonwealth pxceRt * * * any involving relating case violation of a law in revenue.”]). may appeal any judgment In others he order or the State except Vt (Conn acquittal Ann, Part]; 54-96 § Stat Pocket [1976 an Gen Ann, [1974]; Ann, title 2953.14 § Ohio § Stat Rev’d Code (Ga jurisdictions [19.75]). position Still other take an intermediate 399 Opinion Dissenting have been The could Judicature Act of 1915 Ann, [1971]; Ann, Ann, etseq. [1975]; 974.05 Okla Stat § Wis Code Stat 6-1001a § 1053.1, 22, §§ 1053, [1958, 1976-1977 Pocket title Proc, seq. [McKinney, 1971]; Part]; NY 450.20 et Cal Code Crim § law]), Ann, [questions of similar Part] Penal Code to that MSA 28.1109 Association Relating Pocket § [1976 (MCLA 770.12; expressed Procedure in the Code of Criminal 3, supra]) in the embodied American Bar fn and [see Justice, Project Standards Criminal Standards for Appeals (Approved Draft, 1970), 1.4, permitting to Criminal appeal of an information on from dismissal substan a might seriously grounds impede pretrial tive orders prosecution: appeals. "1.4. Prosecution "(a) following appeal permitted in the prosecution The should be situations: "(i) dismissing judgments indictment or information on from unconstitutionally grounds, of the statute such as substantive charging charge brought, or for failure under which the statute; under instrument to state an offense "(ii) prosecution, pretrial terminate such from other orders that convict, upholding jeopardy, autrefois autre- the defenses of double as fois trial; acquit, speedy denial "(iii) seriously impede, although they pretrial do orders that foreclose, granting pretrial prosecution, technically as orders such not motions declared pretrial suppress motions to have confessions evidence or involuntary and inadmissible. upon principles ought likely to be to rest "Such applied throughout clearly uniformly the state. "(b) provided, appellate review Where more than one level highest permitted in the prosecution to seek further review should be has ruled in favor of a defend- whenever an intermediate court court ant-appellant. "(c) special provi- prosecution, of the In an at the instance custody A defendant of the defendant. sion should be made as should unless there is of the pending liberty such an determination of not be denied cogent that he will not abide evidence appellate court.” commentary accompanying states: The occupied space prosecution appeals subject more "The dealing any topic with criminal than articles and lectures appeals. reform of cial briefly Pound recommended In 1907 Professor Roscoe prejudi- power 'giving effectual review of the State to obtain refusing apply to double the rule as errors at the trial and completely adjudicated.’ jeopardy Inherent till the cause has been Justice, 4 Acquired of Punitive Difficulties Administration 222, 239 Proceedings (1907). American Political Science Association advocating appellate leading is that of article review Cases, Miller, Appeals by the State Criminal Justin Professor Yale for provisions The American Law Institute included L J 486 Procedure, appeal prosecution in its Code of Criminal limited (1931). enlarged position resolution its later with a The Institute 428§ People v Pummer 345 Dissenting Opinion

literally prosecutor to appeals.12 construed allow Nevertheless, were separately treated.

In 1917 Legislature provided appeal to this dismissing from an order an informa- tion upon invalidity "based or construction of provision statute”.13 This was codified in the of Code and Criminal Procedure14 carried forward present amendment, to the with an in ex- panding prosecutor’s of to include orders of "relative admission evidence or pro- ceedings any had or made at time before the put jeopardy”.15 defendant is in "specific” This been rendered before it writ of therein, penalty, ing supreme to the same allowed as well over all inferior tion of the constitution of application (Emphasis in fn shall have also 1948 CL Criminal Administration of Criminal opponent Orfield, supra. discretion application; material recommending power person "Writs great public a claim more than 500 "The 3, supra. has who in the name of the where no other court, PA Appeals America, PA 159. PA 132. error has been supreme to broad added.) of the law need been Provided, however, cases of error court; takes exceeds in amount 500 MSA 27.29. upon in vacation as well as in importance acquitted generally ch supreme courts, any Subparagraphs upon any Subparagraph court and in all other certiorari writ of up x, 12; a directed verdict for defendant in cases involv- prosecution appeal prosecution inferior show shall remedy made matter such 1929 CL 17366. or involves the contest prevent final any people or dollars, Law, ch 3 court, have a That if said issue suits, statute (c) fact.” 1948 CL or (a) judgment (Í939).” cases § of this any of the statute expressly provided by and correct the if, dollars, may 13 general superintending any actions and matters magistrates error, term, prejudice in justice (b) has been Professor Lester such early prosecution issue, offense, state, or when the same shall be or where writ determination, course state, chapter thereof The most involves shall errors of the state. course, misdemeanor or in other quoted even where a of the MSA 27.2591. judgment in any issue in the and a construc- returnable will, out of the his law, vigorous in fn brought matters officers, control trial, quoted cases.” proper abuses where book, such ALI, and Mich 326 Levin, Dissenting Opinion J. by off read the is today statutory provision boohs.16 Supreme (appeals by Court — leave), adopted originally as right by before and was Appeals, of the literally creation the it covered prosecu- that subject to the construction construed, not, however, so was It tor appeals.17 III to the Revised Judicature Act The amendments establishing of the Court jurisdiction of Ap- peals, appeals from

—providing final (fns 8), and and judgments "determine” this Court —authorizing rule or interlocutory orders judgments which jurisdiction within the court would (fn 9),

imposed responsibility for "determining” of this "other” scope on Court. Local AFSCME v Recorder’s Court Contrast Council No

Judges, 399 Mich 248 NW2d matters, ag 17 Appeal Right. In all and civil an ".1 criminal appeal party may a matter of from the grieved have circuit, superior, recorder’s courts if the or sentence is taken from a and order, judgment in with accordance these rules final rules, except prescribed time these as herein otherwise withih provided. required Appeal Leave to shall be in Leave. ".2 following matters: "(1) property judgments money rights involv- Final or orders * * * $3,000. in excess ing ”(2) judgments Final orders or the circuit * * * . court or tribunal inferior SU "(3) Judgments sen- in criminal matters in which minimum year. than 1 imposed less tence “(4) judgments corpus proceedings. in habeas orders and Final * * * "(5) judgments orders for divorce . All actions "(6) Appeals from Appeals from administrative orders. "(7) agencies. "(8) receivership entered in from orders * * * 1963, 806. .” GCR proceedings v Pummer Dissenting Opinion The materials to this Court presented when chapter 80 of the General Court Rules was revised shortly before installed, contain no reference whatsoever to pros- ecutor appeals. comparison It apparent language originally of Rule 806 as adopted (ap- Court)18 peals to Supreme amended Rule 806 (appeals Appeals)19 to the Court of amended rule follows the format of the original rule. suppose There is no to reason that this Court in adopting the materials it submitted to did more than simply the of language restructure Rule 806 without any jurisdiction of purpose enlarging the of the Court Appeals of to hear appeals.

Pertinent in this connection is GCR 801.1 providing both before and after the revision of chapter 80 that it not intended thereby "restrict, enlarge change right the or scope of law, provided review explicitly by except as set out in these (Emphasis supplied.) rules”. In 1966 the Court of Appeals rules committee recommended a number of 80 chapter revisions including the 17, supra, fn See for text. 19 Appeal Right. matters, ".1 as of all In criminal and civil aggrieved party right judgments shall have from all final Courts, or final orders from the Circuit Court Claims and Record Court, except judgments er’s on ordinance violations in the Traffic * * * and Ordinance Division of Recorder’s Court. Appeal by Appeals ".2 Leave. The Court of appeal from: "(1) interlocutory judgments Final or or orders of administrative agencies by or tribunals which law are to the Court of Supreme or the Court. "(2) order, Any judgment, Courts, by act or failure to act the Circuit Claims, Court, except and Recorder’s on ordinance violations Court, Traffic Ordinance Division of Recorder’s which is judgment appealable right. a final * » * "(3) in Orders domestic . relations cases "(4) Final entered the circuit any other courts. “(5) provided by 806 Supreme Such other matters as are rules (as amended). Court or other laws.” GCR Dissenting Opinion opposition In it was elimination of this sentence. language of this is to purpose that stressed "[t]he rules that basic emphasize the intent in the statutes found to be only relate to the rules common law appeal”.20 for procedures methods and written opinion A Justice contemporaneous O’Hara, Court when Rule 806 was who was on the deñning is a statute "There revised states: It has of appeal been in people. subject and has been many force years Brundage, judicial construction.” (1968) 399, 402; (emphasis 162 NW2d supplied).21 operation

The Court of has been today decision is the nearly years. Court’s adopting judicial first declaration 806.2(2) "determined”, in 1964 this Revised Judi- meaning amended within Act, of the Court enlarge cature appeal an prosecutors and to allow a new trial.22 Justices, Honigman the from Jason L. March Memorandum (1931), language 801.1 Court Rule No 55 The of Rule is based (1945), providing for that orders or and Court Rule No 55 which review is error, law, by by provided of or writ whether (1931); by appeal” remedy notice of other writ "shall be reviewed "by appeal” signed opinion. Justice Justice Brennan O’Hara’s signed by plurality opinion, Adams, Chief The written Justice Kavanagh, T. M. did not advert Justice Dethmers and Justice Code of Criminal Procedure; suggestion any is that there was there no disagreement proposition Justice O’Hara. Jus- advanced Kelly participate. and Black did not tices judge’s a new rule that a decision to The is well established weight ground contrary great of the verdict trial on the that is appeal except of not be reviewed on abuse the evidence will See v Chesa cases find an abuse of discretion. Patzke discretion. New Co, 190; (1962); Honigman & peake 118 NW2d 286 & O R Hawkins, supra, p accompanying Rule authors’ comments (1976 57.105(a) Practice, Pleading Callaghan’s Michigan Cum & 7A Supp). v Pummer Opinion Dissenting of concept expanding the appellate rights of

prosecutors merit. The Legisla- considerable has, however, ture in the Code Criminal Proce- dure, defined the that scope right. Under Constitution, it prerogative is the Legisla- to provide ture jurisdiction of the court of "[t]he appeals”.23

Even if it thought the amended Revised Act, establishing jurisdiction Judicature Court Appeals, supersedes in this regard the Code Criminal Procedure and that this Court has the authority by rule to enlarge jurisdic- tion of the Court to consider appeals, there is no evidence that the Court has— before today’s decision —exercised that authority. The Court expands of the Court of Appeals without on the analysis premise mistaken questions raised by have already been decided.24 Const art 10.§ judgment The Court reverses the of remands "the cause a decision on the substantive issues raised prosecutor”. preclude It is unclear whether this would the Court dismissing granted improvident exercising whether this have been on whether leave should in the instant case.

Case Details

Case Name: People v. Pummer

Court Name: Michigan Supreme Court

Date Published: Dec 31, 1976

Citation: 249 N.W.2d 78

Docket Number: 57200, (Calendar No. 4)

Court Abbreviation: Mich.