Wayne County Prosecuting Attorney v. Recorder's Court Judge

47 Mich. App. 615 (1973) 209 N.W.2d 610

WAYNE COUNTY PROSECUTING ATTORNEY
v.
RECORDER'S COURT JUDGE
In re PEOPLE
v.
MORGAN
In re PEOPLE
v.
BROWN

Docket Nos. 16623, 16624.

Michigan Court of Appeals.

Decided May 25, 1973.

William L. Cahalan, Prosecuting Attorney, Dominick R. Carnovale, Chief, Appellate Department, and Edward R. Wilson, Assistant Prosecuting Attorney, for plaintiff.

Alphonso R. Harper, for defendant Recorder's Court Judge.

Allan C. Miller, Assistant State Appellate Defender, in opposition to superintending control.

Before: QUINN, P.J., and McGREGOR and BRONSON, JJ.

PER CURIAM.

In these causes a complaint for superintending control and motion for order to show cause are filed by plaintiff, and answers in opposition thereto having been filed, and due consideration thereof having been had by the Court.

It is ordered that the motion for order to show cause be, and the same is hereby denied for lack of meritorious grounds for the relief sought. In Genesee Prosecutor v Genesee Circuit Judge, 386 Mich. 672 (1972), the Supreme Court held that the conduct of the prosecution is an executive act and that the circuit judge exceeded her jurisdiction and usurped the executive function of the prosecutor when she determined, over the objection of the prosecutor, under which of two admittedly applicable statutes a prosecution would be conducted where neither statute was a lesser included offense of the other. This decision cannot be applied in the instant case. The crime of murder in the second degree to which the Recorder's Court Judge permitted defendants Brown and Morgan to plead guilty is a lesser included offense of murder in the first degree, the crime charged in this case, based on the facts which appear in the record. The Supreme Court specifically excluded this situation from its holding in Genesee Prosecutor v Genesee Circuit Judge, supra, 386 Mich. 672, 684. The prosecutor's reliance on the foregoing case is therefore misplaced. We find no authority supporting the proposition that the circuit judge has no jurisdiction to accept a plea of guilty to a lesser included offense of the crime charged. The complaint for superintending control is therefore dismissed.