People of Michigan v. Anthony Quinn Lavallis

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
March 5, 2019
Plaintiff-Appellant,
v No. 340829
Oakland Circuit Court
ANTHONY QUINN LAVALLIS, LC No. 2017-160175-AR
Defendant-Appellee.
Before: TUKEL, P.J., and SHAPIRO and GADOLA, JJ.
SHAPIRO, J. (dissenting).
I respectfully dissent. At the conclusion of the preliminary hearing, the district court
declined the prosecutor’s request to bind defendant over. Pursuant to MCR 7.104(A), which is a
jurisdictional rule, the prosecution had 21 days after entry of the order to claim an appeal of
right. The prosecution failed to meet this deadline and, more than two months after its
expiration, filed an application for leave to appeal.
The circuit court denied the late application for leave to appeal, finding “the length of the
delay to be unreasonable. See MCR 7.105(G)(1).” That rule provides that the court may
consider “the length of and the reasons for the delay in deciding whether to grant the
application.” In its application to the circuit court, the prosecution stated that the delay resulted
from an assistant prosecutor’s failure to refer the matter to the office’s appellate division.
A circuit court’s decision to deny a delayed application for leave to appeal is reviewed by
this Court for an abuse of discretion. People v Flowers, 191 Mich. App. 169, 172; 477 NW2d 473
(1991). I see no basis to conclude that the circuit court abused its discretion. The reason for the
delay was an error fully the responsibility of the prosecution and the delay in discovering that
error was also fully the responsibility of the prosecution. A denial on the grounds that the
“length of the delay was unreasonable” was well within the circuit court’s discretion.
/s/ Douglas B. Shapiro
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