People v. Moore , 111 Mich. App. 633 ( 1981 )

111 Mich. App. 633 (1981) 314 N.W.2d 718

PEOPLE
v.
MOORE.

Docket No. 54878.

Michigan Court of Appeals.

Decided December 1, 1981.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, James J. Gregart, Prosecuting Attorney, and Angela M. Pasula, Assistant Prosecuting Attorney, for the people.

Wickett, Bartl, Haslett, Baugh & Laudenslager, P.C., for defendant on appeal.

Before: R.B. BURNS, P.J., and T.M. BURNS and ALLEN, JJ.

PER CURIAM.

Defendant pleaded no contest to prison escape, MCL 750.195; MSA 28.392, and was sentenced to two to five years in prison, to be served consecutively to the term that defendant was serving at the time of the escape. He appeals by right, raising a single issue: whether the 180-day rule, MCL 780.131; MSA 28.969(1), applies to offenses carrying mandatory consecutive sentences.

Before offering his plea, defendant moved to dismiss the charge against him, arguing that the prosecutor's failure to act to bring the prison escape to trial within 180 days divested the court of jurisdiction to decide the case. The court denied the motion, finding the 180-day rule inapplicable.

We agree with the circuit court. In People v Loney, 12 Mich. App. 288; 162 NW2d 832 (1968), we held that the Legislature intended that the statute protect an inmate's right to concurrent sentencing, so it should apply only to those offenses for which concurrent sentences were possible. We observed that when an offense is committed during imprisonment, a consecutive sentence is mandated by statute, so the purpose of the 180-day rule will not be served by applying it to such offenses.

Loney has been rejected by some members of this Court, including one member of this panel. People v Marcellis, 105 Mich. App. 662; 307 NW2d 402 (1981), People v Anglin, 102 Mich. App. 118; 301 NW2d 470 (1980), People v Moore, 96 Mich. App. 754, 760-762; 293 NW2d 700 (1980). Loney has been followed recently, however, in People v Ewing, 101 Mich. App. 52; 301 NW2d 8 (1980), and People v Grandberry, 102 Mich. App. 769; 302 NW2d 573 (1980). For the reasons discussed in Loney and its progeny, two members of this panel believe Loney represents the better rule. Accordingly, we hold that the circuit court properly found that the 180-day rule did not divest it of jurisdiction over the case.

Affirmed.

T.M. BURNS, J. (dissenting).

As the author of this Court's opinion in People v Moore, 96 Mich. App. 754; 293 NW2d 700 (1980), I considered the question of whether persons incarcerated in this state who commit crimes are entitled to the benefits of the 180-day rule. I concluded that they were and have not been persuaded that that view is incorrect.

The majority mistakenly assumes that the purpose of the 180-day rule is only to insure concurrent sentencing. In People v Hill, 402 Mich. 272, 280; 262 NW2d 641 (1978), the Supreme Court found that the purpose of the 180-day rule was to "secure to state prison inmates their constitutional right to a speedy trial". Persons incarcerated in the various institutions of this state are as much entitled to speedy trials as those who are not.

Further, the statute embodying the 180-day rule, MCL 780.131; MSA 28.969(1), does not except incarcerated defendants from its provisions. Plain language of the statute applies to all persons charged with crimes. In People v Loney, 12 Mich. App. 288; 162 NW2d 832 (1968), this Court carved an exception into the 180-day rule on the basis of what it found to be the intent of the Legislature, to protect an inmate's right to concurrent sentencing. When critically examined, it is evident that the Loney opinion involves a situation of the tail wagging the dog. That is, on the basis of a finding of legislative intent not expressly stated in the statute, this Court has altered the expressed language of that statute.

It is the function of this Court to apply unambiguous statutes as written. The plain language of the 180-day rule applies to this case. Therefore, I respectfully dissent and would reverse the lower court's order that denied defendant's motion to dismiss.