People v. Gravedoni

172 Mich. App. 195 (1988) 431 N.W.2d 221

PEOPLE
v.
GRAVEDONI

Docket No. 100683.

Michigan Court of Appeals.

Decided August 22, 1988.

Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Gary L. Walker, Prosecuting Attorney, and Scott K. Hanson, Assistant Prosecuting Attorney, for the people.

Mark Peter Stevens, for defendant.

Before: BEASLEY, P.J., and SAWYER and WEAVER, JJ.

PER CURIAM.

Defendant was convicted by a jury of one count of fraudulent use of electric service, MCL 750.282; MSA 28.493. He was sentenced to three years probation, six months to be served in the county jail (thirty days to be served immediately, the remaining time to be served following probation subject to review by the trial court). This Court granted defendant's motion to file a delayed appeal. We affirm.

I

We reject defendant's argument that the trial court committed error mandating reversal by refusing to read the cautionary instructions regarding the prosecutor's burden of disproving all reasonable theories of innocence when the prosecutor's case depends entirely on circumstantial evidence. CJI 4:2:02(6), (7).

A prosecutor need not specifically disprove all theories of a defendant's innocence. People v Doss, 122 Mich. App. 571, 574-575; 332 NW2d 541 (1983), lv den 417 Mich. 1100.16 (1983). Use of the Michigan Criminal Jury Instructions is not required. People v Petrella, 424 Mich. 221, 277; 380 NW2d 11 (1985). Cautionary instructions need only be given when circumstantial evidence against a defendant is weak. People v Armentero, 148 Mich. App. 120, 132; 384 NW2d 98 (1986), lv den 425 Mich. 883 (1986). Because the circumstantial evidence against defendant in this case was not weak, the trial court did not err in declining to give the instructions.

II

Equally without merit is defendant's contention that his conviction is invalid because the amendment to MCL 750.282; MSA 28.493, effective April 12, 1984, elevated from an excess of $50 to an excess of $500 the amount of services which the prosecution must prove was obtained by fraudulent means in order to convict for a felony. MCL 8.4a; MSA 2.214 unambiguously provides that unless there is a specific provision voiding a former law, any actions pending on the effective date of a new law are saved. Since defendant was arraigned on March 9, 1984, the action against him was pending on the effective date of the amended statute. The Legislature's omission in the amendment to MCL 750.282; MSA 28.493 to expressly provide for release or relinquishment of the repealed portion of the statute necessarily validates defendant's conviction under the statute as it formerly existed. See People v McDonald, 13 Mich. App. 226, 229-230; 163 NW2d 796 (1968), lv den 381 Mich. 795 (1968).

III

We are unpersuaded by defendant's argument that he was denied his constitutional right to a speedy trial. To determine whether a defendant has been denied the right to a speedy trial, this Court looks to: (1) length of the delay, (2) reasons for the delay; (3) defendant's assertion of his right to a speedy trial; and (4) whether defendant was prejudiced because of the delay. People v Gambrell, 157 Mich. App. 253, 259; 403 NW2d 535 (1987); People v Collins, 388 Mich. 680, 687-695; 202 NW2d 769 (1972), adopting the test of Barker v Wingo, 407 U.S. 514, 530; 92 S. Ct. 2182; 33 L. Ed. 2d 101 (1972).

Regarding the length of and reasons for delay in this case, defendant was arrested in February of 1984 and brought to trial on May 19, 1986, a delay of approximately twenty-seven months. We note, however, that this delay cannot be attributed entirely to the prosecution, at least ten months being clearly chargeable to defendant.

Our review of this matter indicates that defendant never asserted his right to a speedy trial, his only mention of this right being a motion to quash which was filed immediately before trial. Nor has defendant shown prejudice by the delay of his trial, since (1) he was never incarcerated, (2) he did not retain new counsel in order to minimize the anxiety which may have arisen due to his counsel's delays, and (3) the delay did not impair his defense since no witnesses were lost. Collins, supra at 694-695. If anything, it is probable that the prosecution's witnesses would have forgotten things more helpful to the prosecution than to defendant.

Subtracting the period of time for which defendant was responsible for the delay, the total delay which should here be considered was approximately seventeen months and therefore is less than the eighteen-month time period after which a presumption of prejudice would arise. See People v Taylor, 110 Mich. App. 823, 828-829; 314 NW2d 498 (1981). Since prejudice to a defendant is not presumed before the eighteen-month time period has elapsed, defendant bears the burden of showing that his rights were infringed; however, his failure to assert the right to a speedy trial weighs heavily against him. Id.

From the foregoing analysis we conclude that the trial court did not clearly err when determining that defendant was not prejudiced by the delay in bringing him to trial. MCR 2.613(C).

Affirmed.