PEOPLE OF MI V JAMES KNIGHTAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
July 17, 1998
LC No. 96-629579 AR
Before: Murphy, P.J., and Young, Jr. and Michael R. Smith*, JJ.
By order of the Supreme Court, we consider as on delayed leave plaintiff’s appeal from the trial
court’s order dismissing a delinquency petition. We affirm. This appeal is being decided without oral
argument pursuant to MCR 7.214(E).
On February 2, 1996, a delinquency petition was filed charging defendant with multiple
offenses. Defendant was served by ordinary mail. Defendant failed to appear for the pretrial hearing,
and the petition was dismissed without prejudice, based on the fact that there was no personal service.
Plaintiff sought review of the referee’s decision. The probate court affirmed the referee’s
decision, noting that while the referee had other options, she did not err as a matter of law in dismissing
the petition without prejudice, particularly where the prosecutor expressed no reluctance to refile the
petition. The recorder’s court also affirmed the decision, noting that the prosecutor had not sought any
alternative relief before the referee.
MCR 5.920(C)(4) provides that in a juvenile proceeding, when a party fails to appear in
response to a notice of hearing, the court may order the party’s appearance by summons or subpoena.
MCL 712A.12; MSA 27.3178(598.12) provides that after a petition is filed the court may dismiss the
petition or issue a summons requiring the person with custody or control of the child to bring the child
before the court. Both the statute and court rule are phrased to give discretion to the court. The
statutory discretion is limited to two choices. The court may either
* Circuit judge, sitting on the Court of Appeals by assignment.
dismiss the petition or elect to continue the proceedings. In re Brown, 149 Mich App 529, 537; 386
NW2d 577 (1986). Here, the trial court elected to dismiss the petition without prejudice. Where
plaintiff expressed no reluctance to refile the petition, and did not request alternate measures from the
referee, there is no showing that the referee abused her discretion in dismissing the petition without
/s/ William B. Murphy
/s/ Robert P. Young, Jr.
/s/ Michael R. Smith