Opinion
Docket No. 62995.
Decided April 5, 1983. Leave to appeal applied for.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Peter D. Houk, Prosecuting Attorney, Janice L. Blough, Chief Appellate Attorney, and Susan K. Marshall and Pamela J. McCabe, Assistants Attorney General, for the people.
State Appellate Defender (by Karla Kendall), for defendant on appeal.
Before: ALLEN, P.J., and BRONSON and WAHLS, JJ.
Defendant pled guilty to charges of armed robbery, MCL 750.529; MSA 28.797, and breaking and entering, MCL 750.110; MSA 28.305. He appeals by right.
Defendant first claims that the circuit court erred by refusing to overturn the probate court's denial of his motion to dismiss the people's petition for a waiver of juvenile court jurisdiction. On December 24, 1980, a preliminary hearing was held pursuant to JCR 1969, 4.2, and defendant was ordered detained. A January 23, 1981, hearing was set. On December 30, 1980, the prosecutor filed an application to waive juvenile court jurisdiction over defendant. On January 23, 1981, the probate court adjourned the hearing, because the victim of an armed robbery defendant was charged with had not sufficiently recovered from her injuries to testify. The hearing was adjourned to February 18, 1981.
Defendant claims that reversal is required, alleging a violation of JCR 1969, 11.1, which states in part:
"Phase 1 of the waiver hearing must be held within 28 days after the preliminary hearing, unless adjourned for good cause."
The circuit judge held that the hearing was adjourned for good cause and that defendant's failure to show prejudice barred him from relief.
We first address the holding that defendant's failure to show prejudice bars him from relief. Our Supreme Court has held that a violation of the "12-day rule" for preliminary examinations (MCL 766.4; MSA 28.922) entitles a defendant to discharge. People v Weston, 413 Mich. 371; 319 N.W.2d 537 (1982), rejecting this Court's "no prejudice/no reversal" rule. A violation of the "28-day rule" of JCR 1969, 11.1 is distinguishable, because a probable cause determination has been made prior to the entry of an order detaining a juvenile. See JCR 1969, 4.2(b)(7)(b). The fact of a juvenile's detention is not altered, regardless of the outcome of Phase I of the waiver hearing. See JCR 1969, 11.6. Compare the situation considered by the Supreme Court in Weston:
"A preliminary examination functions, in part, as a screening device to insure that there is a basis for holding a defendant to face a criminal charge. A defendant against whom there is insufficient evidence to proceed should be cleared and released as soon as possible. The notion that a presumptively innocent defendant should remain in custody until a convenient time arrives for the magistrate to conduct the preliminary examination is exactly what the Legislature precluded in MCL 766.1; MSA 28.919." (Footnote omitted.) Weston, supra, p 376. We believe that the decision on this issue is not governed by its analogy to Weston.
At the same time, we recognize that few, if any, defendants will be able to show prejudice due to a violation of the "28-day rule". A "no prejudice/no reversal" rule might encourage noncompliance with the time limitation. Until we receive guidance from the Supreme Court sitting in its supervisory capacity, we will apply the rule that the nature of the noncompliance will dictate the nature of the remedy.
In the present case, the probate judge set an adjudicative phase hearing for 30 days after the preliminary hearing. This would have been timely, JCR 1969, 8.1, had no waiver petition been filed by the prosecutor. No effort was made by either party to reschedule the hearing. On January 23, 1981, an adjournment was granted for good cause. This cause had existed at all times prior to that date; i.e., the prosecutor's motion to adjourn, if it had been brought in a timely manner, would have been granted. Defendant is not, therefore, objecting to the failure to hold a hearing in a timely manner, but to the failure to move to adjourn in a timely manner. Under the circumstances we find that reversal is not warranted.
The circuit court also held that defendant's Phase I waiver hearing was adjourned for good cause, excusing the requirement that it be held within 28 days of his preliminary examination. Although the language of JCR 1969, 11.1 does not explicitly preclude this interpretation, we agree with defendant that, to be timely under the rule, a motion to adjourn must generally be brought within 28 days of the preliminary hearing.
Defendant alleges that he did not receive timely notice, as required by statute and court rule, of the hearing on the petition to waive jurisdiction. He does not claim, however, that he lacked actual notice of all that is required by statute and court rule. We refuse to reverse absent a claim of lack of actual notice. We also believe that this claim was waived by defendant's guilty plea.
Finally, defendant claims that his guilty plea is invalid, because the trial judge failed to inform him of the mandatory minimum sentence for armed robbery. Although I believe that armed robbery does carry a mandatory minimum term, I believe that no error was committed for the reasons stated in my opinion in People v Gray, 121 Mich. App. 788; 329 N.W.2d 493 (1982).
Affirmed.