PEOPLE OF MI V TAVARIS MARKEITH BLANKS
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
April 22, 2008
Plaintiff-Appellee,
v
No. 255257
Wayne Circuit Court
LC No. 03-013651-01
TAVARIS MARKEITH BLANKS,
Defendant-Appellant.
ON REMAND
Before: Hoekstra, P.J., and Wilder and Donofrio, JJ.
PER CURIAM.
Our Supreme Court remanded this case to us for reconsideration of defendant’s 180-dayrule violation claim in light of its holding in People v Williams, 475 Mich 245; 716 NW2d 208
(2006).1 Further, the order vacated “the judgment of the Court of Appeals that excused the 180day-rule violation based on the prosecutor’s good faith efforts to bring the defendant to trial
within 180 days.” People v Blanks, 480 Mich 914; 739 NW2d 872 (2007) (emphasis added).
The analysis in our prior opinion pertaining to defendant’s claim of a 180-day-rule
violation stated:
Defendant also argues that the trial court erred in not dismissing the
charges because the prosecutor violated the 180-day rule. This issue presents a
legal question that we review de novo. People v McLaughlin, 258 Mich App 635,
643; 672 NW2d 860 (2003).
The 180-day rule, which is contained in MCL 780.131 and MCR
6.004(D), requires the prosecutor to bring an inmate to trial within 180 days of
receiving notice of the inmate’s incarceration in a state prison. People v
Smielewski, 235 Mich App 196, 198; 596 NW2d 636 (1999). The rule does not
require that trial be commenced or concluded within the 180-day period, only that
the prosecutor make a good faith effort to bring the case to trial within that period.
People v Hendershot, 357 Mich 300, 303-304; 98 NW2d 568 (1959); People v
Bell, 209 Mich App 273, 278; 530 NW2d 167 (1995). The record reflects that the
1
In all other respects, defendant’s application for leave to appeal was denied.
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prosecution did not receive notice of defendant’s incarceration until August 2003.
Thus, there was no violation of the 180-day rule because defendant’s preliminary
examination was conducted on December 8, 2003, within 180 days of when the
prosecution received notice of defendant’s incarceration. See People v Finley,
177 Mich App 215, 219-220; 441 NW2d 774 (1989). [People v Blanks,
unpublished opinion per curiam of the Court of Appeals, issued September 15,
2005 (Docket No. 255257), slip op 8-9.]
From the plain language of the Supreme Court’s remand order, we conclude that the
above-quoted analysis, which applied the “good-faith exception,”2 constituted “excus[ing]”3
what otherwise under MCL 780.131 would have been a violation of the 180-day-rule. In other
words, the fact that a preliminary examination was held within 180 days of notification cannot
forgive or overlook the 180-day-rule violation that otherwise occurred in this case. This holding
regarding application of the “good faith exception” is somewhat curious because Williams did
not directly address the “good-faith exception.”4 However, the import of this order as it relates
to the “good-faith exception” is not totally surprising given the emphasis Williams placed on
adhering to the plain language of the statute, which does not provide for a “good-faith exception”
in its text, and the statement in Williams that the remedy section of the 180-day-rule, MCL
780.133, requires dismissal with prejudice if trial does not commence within 180 days. See
Williams, supra at 252, 254-255.
In its supplemental brief after remand, plaintiff argues that the “good-faith exception”
remains viable as applied to the remedy section of the 180-day-rule, MCL 780.133, because
Williams did not overrule Hendershot, supra, and the comment regarding MCL 780.133 is dicta.
Plaintiff is correct that Hendershot was not overruled in Williams, but neither was its holding
reaffirmed. Rather, Hendershot was cited as one of three cases that interpreted the 180-day-rule
and whose holdings were codified by MCR 6.004(D) as amended in 1989. The other two cases,
People v Hill, 402 Mich 272; 262 NW2d 641 (1978) and People v Castelli, 370 Mich 147; 121
NW2d 438 (1963) were analyzed and overruled,5 Williams, supra at 259, but no further mention
was made of Hendershot. Thus, Williams leaves the effect of the “good faith exception”
announced in Hendershot in doubt. Further, we agree that arguably the language in Williams
regarding MCL 780.133 is dicta. Nevertheless, the remand order, which finds a violation of the
2
The “good-faith exception” was articulated in Hendershot, supra at 304, which held that no
violation occurs where “apparent good-faith action is taken well within the period and the people
proceed promptly and with dispatch thereafter toward readying the case for trial . . . .”
3
Excuse is defined as “to regard or judge with indulgence; pardon or forgive; overlook (a fault,
error, etc.).” Random House Webster’s College Dictionary (1992).
4
The exception at issue in Williams was the holding in People v Smith, 438 Mich 715; 425
NW2d 337 (1991), that the 180-day-rule does not apply when the pending charge provides for
mandatory consecutive sentencing.
5
Hill and Castelli were overruled because they “improperly expanded the scope of the 180-dayrule statute by requiring the prosecutor to bring a defendant to trial within 180 days of the date
that the Department of Corrections knew or had reason to know that a criminal charge was
pending against the defendant. MCR 6.004(D)(1)(b).” Williams, supra at 259.
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180-day-rule in this case despite our application of the “good-faith exception,” precludes us from
engaging in the analysis advanced by plaintiff. See K & K Constr, Inc v Dep’t of Environmental
Quality, 267 Mich App 523, 544; 705 NW2d 365 (2005) (“[W]hen an appellate court gives clear
instructions in its remand order, it is improper for a lower court to exceed the scope of the
order”).
What then must we reconsider in light of Williams on remand? Williams requires strict
conformity with the notification requirements of MCL 780.131(1).6 Williams, supra at 256. We
believe that it is a review of the compliance, or lack of compliance, with the notice requirements
that we are directed to conduct on remand. However, a review of the record in this case reveals
that the trial court and the parties did not address whether the notice sent in this case conforms to
the strict requirements set forth in the statute, nor is the notice itself part of the record.
Consequently, we remand the case to the trial court to make the requisite factual determination
regarding whether the notice sent in this matter complied with MCL 780.131(1) and to apply
those findings consistent with Williams.
Remanded for further proceedings. We retain jurisdiction.
/s/ Joel P. Hoekstra
/s/ Kurtis T. Wilder
/s/ Pat M Donofrio
6
MCL 780.131(1) provides:
Whenever the department of corrections receives notice that there is pending in
this state any untried warrant, indictment, information, or complaint setting forth
against any inmate of a correctional facility of this state a criminal offense for
which a prison sentence might be imposed upon conviction, the inmate shall be
brought to trial within 180 days after the department of corrections causes to be
delivered to the prosecuting attorney of the county in which the warrant,
indictment, information, or complaint is pending written notice of the place of
imprisonment of the inmate and a request for final disposition of the warrant,
indictment, information, or complaint. The request shall be accompanied by a
statement setting forth the term of commitment under which the prisoner is being
held, the time already served, the time remaining to be served on the sentence, the
amount of good time or disciplinary credits earned, the time of parole eligibility
of the prisoner, and any decisions of the parole board relating to the prisoner. The
written notice and statement shall be delivered by certified mail.
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