Michigan Court of AppealsApr 22, 1987
161 Mich. App. 743 (Mich. Ct. App. 1987)
161 Mich. App. 743411 N.W.2d 730

Docket No. 87916.

Decided April 22, 1987. Decided on rehearing July 21, 1987.

Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Robert E. Weiss, Prosecuting Attorney, and Donald A. Kuebler, Chief, Appellate Division, for the people.

Andrew J. Transue and Terrance P. Sheehan, for defendant on appeal.


Before: M.J. KELLY, P.J., and SAWYER and M.R. KNOBLOCK, JJ.

Circuit judge, sitting on the Court of Appeals by assignment.


The facts of this case are set forth at 159 Mich. App. 632; 406 N.W.2d 893 (1987) and need not be repeated here. We have granted defendant Jonathan P. Doyle's motion for rehearing in order to reconsider our prior ruling on the authority of the Genesee Circuit Court to dismiss the Genesee County Prosecutor's office from prosecuting charges pending against defendant Doyle in district court. Upon reconsideration we are persuaded that we erred, and we reverse our earlier holding on this question only.

We now conclude that the Genesee Circuit Court had authority to disqualify the Genesee County Prosecutor's office from performing its duties in any district court within the county with regard to the prosecution of defendant Doyle. MCL 49.160(2); MSA 5.758(2) expressly provides:

If the prosecuting attorney of a county is disqualified by reason of conflict of interest or is otherwise unable to attend to the duties of the office, the circuit court for that county, upon finding to that effect by the court, may appoint an attorney at law as a special prosecuting attorney to perform the duties of the prosecuting attorney in the probate court, the district court, or any other court within the county in any matter in which the prosecuting attorney is disqualified or until such time as the prosecuting attorney is able to serve.

See also, In re Petition for Appointment of Special Prosecutor, 122 Mich. App. 632; 332 N.W.2d 550 (1983). On the basis of this authority, we reinstate that portion of the trial court's order disqualifying the Genesee County Prosecutor's office from prosecuting charges against defendant Jonathan Doyle as to the nine other drug charges which were then pending against defendant Doyle in Genesee County district courts.