author:
R. B. Burns, J.
      Cynar, P.J.

text:
    REINELT v PUBLIC SCHOOL EMPLOYEES’ RETIREMENT BOARD
    Docket No. 77-5028.
    Submitted November 15, 1978, at Lansing.
    Decided January 3, 1979.
    Leave to appeal applied for.
    Charles Reinelt retired from his teaching position after having taught continously in Michigan schools for nearly 40 years, except for a period from 1942 to 1946 when he enlisted in the United States Navy. The Public School Employees’ Retirement Board granted Reinelt credit for the time spent on active duty with the Navy. The board, however, denied credit for a period of approximately six months during which Reinelt was enrolled in college, after his enlistment but prior to his entering active duty, as a part of an officer training program. Reinelt petitioned for review of the retirement board’s decision, and the Ingham Circuit Court, Ray C. Hotchkiss, J., affirmed the board. Reinelt appeals. Held:

    The statute which was in effect at the time of Reinelt’s retirement and which provided for credit for time served in the armed forces was intended to provide retirement credit for the time during which members of the retirement system were unable to continue their school employment because of a conflicting obligation to serve in the armed forces. Therefore, Reinelt, who had such an obligation to the armed forces, should be allowed the credit for the time he spent in preparation for his active service, without regard to whether he was on active or inactive duty during that time. An Attorney General’s opinion to the contrary is not binding on the Court.
    Reversed.
    Cynar, P.J., dissented. He would hold that the statute required that a person be on active duty before becoming eligible for the retirement credit.
    References for Points in Headnotes

       73 Am Jur 2d, Statutes §§ 142,145.

       7 Am Jur 2d, Attorney General § 8.

       73 Am Jur 2d, Statutes §§ 2, 343.

       73 Am Jur 2d, Statutes § 145.

       60 Am Jur 2d, Pensions and Retirement Funds §§ 20, 27, 42.

      Opinion of the Court
    1. Statutes — Construction of Statutes — Courts—Appeal and Error.
    The construction given to a statute by those charged with the duty of executing it is always entitled to the most respectful consideration by the courts and ought not to be overruled without cogent reasons.
    2. Courts — Court of Appeals — Attorney General’s Opinions. The Court of Appeals is not obligated to follow an opinion of the Attorney General.
    3. Statutes — Construction of Statutes — Amendments.
    Generally, an amendment to a statute is to be construed as changing the meaning of the statute unless a different intent is manifest.
    4. Statutes — Construction of Statutes — Intent of Legislature.
    The primary rule of statutory construction is to ascertain and give effect to the intention of the Legislature; the intent is the one entertained by the Legislature at the time of the passage of the act under consideration, and not the intent expressed by ‡ subsequent amendment.
    5. Statutes — School Employees’ Retirement System — Military Service Credit — Active Duty — Inactive Duty.
    A statute which provided retirement credit for time served in the military by a teacher whose teaching career was interrupted by that military service was intended to provide the credit Where the teacher was unable to continue teaching because of a conflicting obligation to serve in the armed forces; therefore, ho distinction is to be made between active and inactive duty in 4 case where a teacher enlisted during wartime in a prograta which required him to attend college at his own expense ifa preparation for entering active duty as a naval officer (MOli 38.214; MSA 15.893[14]).
    Dissent by Cynar, P. J.
    6. Statutes — School Employees’ Retirement System — Military Service Credit — Active Duty — Inactive Duty.

      A member of the school employees’ retirement system is entitled to credit for time spent in the armed forces, blit only to that time spent in active service; therefore, a teacher who enlisted in a program in which he was required to attend college at his

      own expense in preparation for entering active service as a naval officer is not entitled to credit for the time between his enlistment and the time he entered active duty.

      Foster, Swift, Collins & Coey, P.C. (by Arthur R. Przybylowicz and James A. White), for plaintiff.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Gerald F. Young, Mary Kay Bottecelli and Richard P. Gart-ner, Assistants Attorney General, for defendant.
    Before: Cynar, P.J., and R. B. Burns and M. B. Breighner, JJ.

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

   R. B. Burns, J.

Plaintiff Reinelt appeals from a circuit court affirmance of a decision by defendant Michigan Public School Employees’ Retirement Board denying plaintiff additional military service credit in the computation of plaintiff’s retirement benefits. We reverse.

Plaintiff left his employment as a school teacher to enlist in the Navy on August 21, 1942. Upon enlistment, plaintiff was placed in the Navy’s V-7 program, under which he attended Michigan State Normal College at his own expense, taking courses to prepare him to become an officer. At that time he had a military serial number, rank, commanding officer, and was exempt from military draft. However, he was not paid by the Navy, not required to wear a uniform, did not live in Navy barracks, and did not receive a housing subsidy. On March 9, 1943, he entered active duty in the Navy. Plaintiff’s active duty ended March 28, 1946, and he immediately resumed teaching in Michigan schools. Plaintiff retired July 1, 1974.

In computing plaintiff’s retirement benefits, defendant allowed military service credit only for the period of March 9, 1943, to March 28, 1946.

At the time of plaintiff’s retirement, 1972 PA 170; MCL 38.214; MSA 15.893(14), provided in part:

"A member of this retirement system who was or shall be drafted, enlisted, inducted, or commissioned into military, naval, marine or other armed service of the United States government during time of war or emergency, or who shall be drafted or called into such armed service or emergency during time of peace, and within 24 months from the date of his honorable discharge or relief from active duty from such armed service shall resume employment as a public school employee, shall receive a maximum of 6 years of credit, except required service extending beyond 6 years, for time spent in such armed service credited to him as a member of the retirement system.”

The statute is ambiguous as to how "time spent in such armed service” shall be calculated. Plaintiff argues that the time period starts to run as of the time of draft or enlistment. Defendant argues that the reference in the statute to "relief from active duty” implies that only time spent on active duty is "time spent in such armed service”.

The precise issue raised in this case was addressed by the Attorney General in a letter opinion to Norvel A. Hansen, Executive Director of the Michigan Public School Employees’ Retirement System, dated February 3, 1975. In that opinion the Attorney General reasoned:

"A member of the Public School Employees Retirement System cannot earn service credit pursuant to MCLA 38.214; MSA 15.893(14) unless he or she returns to public school employment 'within 24 months from the date of his honorable discharge or relief from active duty from such armed service.’ Thus, a member is not entitled to such service credit until he or she first enters, and then honorably leaves, active duty in the armed services.
"Further, MCLA 38.214; MSA 15.893(14) grants service credit only 'for time spent in such armed service.’ Since such 'time’ ends when the member is honorably discharged from active duty, it must, to be consistent, begin when the member enters active duty.
"It is, therefore my opinion that a member is not entitled to military service credit under MCLA 38.214; MSA 15.893(14) until he or she enters active duty in the Armed Forces.”

The statute was subsequently amended to provide in part:

"A member of this retirement system who was or shall be drafted, enlisted, inducted, or commissioned into active duty with the military, naval, marine, or other armed service * * * .” 1976 PA 357; MCL 38.214; MSA 15.893(14). (Emphasis supplied.)

This amendment appears to have been intended to clear up the instant ambiguity by adopting the Attorney General’s interpretation and expressing that meaning with clarity.

Defendant asserts that this Court must give great weight to the Attorney General’s administrative interpretation of the statute. See, e.g., Magreta v Ambassador Steel Co (On Rehearing), 380 Mich 513, 519; 158 NW2d 473, 475 (1968). It is true that

" '[t]he construction given to a statute by those charged with the duty of executing it is always entitled to the most respectful consideration and ought not to be overruled without cogent reasons.’ ” Magreta v Ambassador Steel Co, supra, quoting United States v Moore, 95 US 760, 763; 24 L Ed 588, 589 (1877).

The rationale for this rule is that administrative agencies generally have special competence in interpreting and applying specialized legislation in their field of expertise. See 2A Sutherland, Statutory Construction (4th ed), § 49.05, pp 238, 239. Since the instant interpretation comes not from the agency charged with the duty of executing the statute, defendant board, but from the Attorney General, the rule and its rationale are inapplicable. This Court is not required to follow the opinion of the Attorney General. Traverse City School Dist v Attorney General, 384 Mich 390, 410 fn 2; 185 NW2d 9, 17 (1971). Garcia v City of Warren Civil Service Comm, 78 Mich App 603, 608; 261 NW2d 19, 22 (1977), David Walcott Kendall Memorial School v Grand Rapids, 11 Mich App 231, 237; 160 NW2d 778, 781 (1968). Instead, we accept the opinion of the Attorney General as expressing one of two possible, reasonable interpretations, but do not view the reasoning of the opinion as compelling.

Defendant also contends that the subsequent amendment of the statute to conform to the Attorney General’s interpretation of the old statute reflects a legislative intention to clarify the ambiguity by making explicit the Legislature’s prior intent. The difficulty with this argument is that we cannot know whether the change was intended by the Legislature to be one of form or substance. Generally, an amendment is to be construed, unless a different intent is manifest, as changing the meaning of the statute. Bonifas-Gorman Lumber Co v Unemployment Compensation Comm, 313 Mich 363, 369; 21 NW2d 163, 165 (1946). Thus, one inference which may be drawn from the amendment is that the Legislature viewed the prior statute as having the meaning advanced by plaintiff, and changed the meaning to that advanced by defendant. On the other hand,

" '[i]f the amendment was enacted soon after controversies arose as to the interpretation of the original act, it is logical to regard the amendment as a legislative interpretation of the original act — a formal change— rebutting the presumption of substantial change.’ ” Detroit Edison Co v Dep’t of Revenue, 320 Mich 506, 520; 31 NW2d 809, 816 (1948), quoting 1 Sutherland, Statutory Construction (3d ed), § 1931, p 418, see Detroit Edison Co v Janosz, 350 Mich 606, 613-614; 87 NW2d 126, 130 (1957).

Thus, we may also infer that the Attorney General’s opinion was in response to a controversy concerning the correct interpretation of the statute, and the Legislature reacted thereto by making clear its prior intent.

Whatever might have been the understanding of the Legislature as to the prior meaning of the statute, that understanding would only be evidence to aid in our interpretation, and not disposi-tive.

"The controlling test as to the meaning of a statutory provision is always the legislative intent when fairly ascertainable. But the 'intent’ referred to is the one entertained by the legislature at the time of the passage of the act, and not the intent expressed by a subsequent amendment. In the instant case, to interpret the subsequent amendment as an indication of the legislature’s original intent would be mere speculation, not judicial construction.” Iron Street Corp v Unemployment Compensation Comm, 305 Mich 643, 655; 9 NW2d 874, 879 (1943), Detroit Edison Co v Dep’t of Revenue, supra, at 519; 31 NW2d at 815.

The primary rule of statutory construction,

"is to ascertain and give effect to the intention of the legislature. All [other rules] serve but as guides to assist the courts in determining such intent with greater degree of certainty”. Grand Rapids v Crocker, 219 Mich 178, 182; 189 NW 221, 222 (1922).

Having determined that extrinsic aids to interpretation do not provide a dispositive answer to the instant issue, we turn to the words of the statute itself.

The intention of the Legislature is manifest. The purpose of the statute is to provide retirement credit for that time during which members of the retirement system were unable to continue their school employment because of a conflicting obligation to serve their country in the armed forces. Ordinarily that obligation would conflict with a teaching career at the time of draft or enlistment, and we may infer that the Legislature assumed without expressly considering that draft or enlistment would automatically lead immediately to active duty. We decline to write into the statute a distinction not then made by the Legislature, which would be essentially arbitrary and thwart the general purpose of the statute in cases such as this. Upon plaintiffs enlistment, he was obligated to serve his country in a capacity which interrupted his teaching career. His sacrifice was no less than it would have been had he first been placed on active duty and then sent to school. We are certain that, had the Legislature expressly considered this type of situation, it would have drawn the statute in such a manner as to make clear its intention to allow the credit.

Reversed. No costs, public question.

M. B. Breighner, J., concurred.

Cynar, P.J.

(dissenting). In a February 3, 1975, letter opinion to Norvel Hansen, the Attorney General stated:

"A member of the Public School Employees Retirement System cannot earn service credit pursuant to MCLA 38.214; MSA 15.893(14) unless he or she returns to public school employment 'within 24 months from the date of his honorable discharge or relief from active duty from such armed service.’ Thus, a member is not entitled to such service credit until he or she first enters, and then honorably leaves, active duty in the armed services.
"Further, MCLA 38.214; MSA 15.893(14) grants service credit only 'for time spent in such armed service.’ Since such 'time’ ends when the member is honorably discharged from active duty, it must, to be consistent, begin when the member enters active duty.
"It is, therefore my opinion that a member is not entitled to military service credit under MCLA 38.214; MSA 15.893(14) until he or she enters active duty in the Armed Forces.”

I find this analysis more persuasive and adopt it as my own. Therefore, I would affirm the decision of the trial judge.


source: Caselaw Access Project

author: Danhof, C.J. Bashara, J.

license: Public Domain

text:
    PEOPLE v CARTER
    Docket No. 78-204.
    Submitted October 10, 1978, at Lansing.
    Decided January 3, 1979.
    Billy G. Carter was convicted of armed robbery and possession of a firearm during the commission of a felony by the Genesee . Circuit Court, Philip C. Elliott, J. Defendant appeals claiming errors in the admission of evidence concerning other criminal acts by the defendant, in the failure to produce two alleged res gestae witnesses for trial, and that it was double jeopardy to convict him of both armed robbery and possession of a firearm during the commission of a felony as a result of one criminal transaction. Held:

    1. There was no reversible error where the trial court found that the probative value of evidence concerning other criminal acts by the defendant outweighed its prejudicial effect and allowed this testimony into evidence where the identity of the robber was in issue and the testimony tended to support the witness’s indentification of the defendant by showing she had another opportunity to observe the defendant under similar circumstances. The common law allows such evidence when the evidence offered tends to prove the identity of the person who committed the crime for which the defendant is on trial.
    2. The trial court did not abuse its discretion in finding that the prosecutor had exercised due diligence in attempting to locate and produce certain alleged res gestae witnesses at the trial; the trial judge did not err in finding that the police informant in this case was not a res gestae witness.
    3. The defendant’s conviction for both armed robbery and possession of a firearm during the commission of a felony did not violate the double jeopardy clause.
    Affirmed.
    References for Points in Headnotes

       29 Am Jur 2d, Evidence §§ 320, 322.

       41 Am Jur 2d, Indictments and Informations § 56.

       29 Am Jur 2d, Evidence § 708.

       81 Am Jur 2d, Witnesses § 2.

       21 Am Jur 2d, Criminal Law §§ 183, 186.

       21 Am Jur 2d, Criminal Law §§ 188, 570.

       21 Am Jur 2d, Criminal Law § 570.

      Bashara, J. concurred in part and dissented in part. He would vacate the felony-firearm conviction but uphold the sentence imposed therefor based upon his belief that the felony-firearm statute is a sentence enhancement statute rather than a statute creating a separate and distinct felony.
    Opinion of the Court
    1. Evidence — Criminal Law — Unrelated Crimes — Admissibility-Exception.
    Evidence of a distinct, unrelated crime is generally not admissible in a trial of a defendant charged with the commission of a different criminal offense; a common law exception to this rule allows admission of such evidence when the evidence offered tends to prove the identity of the person who committed the crime for which defendant is on trial.
    2. Appeal and Error — Criminal Law — Evidence—Admissibility— Identity — Credibility.
    There was no reversible error where a trial court, in a trial for armed robbery and possession of a firearm during the commission of a felony, found that the probative value of evidence, by which the defendant was identified as the same person who committed an earlier robbery of the same store, outweighed its prejudicial effect and allowed this testimony into evidence because the identity of the robber was in issue and the witness’s viewing of the defendant during a robbery approximately one month before the charged robbery, in the same store under similar circumstances, tended to make the witness’s identification of the defendant more credible.
    3. Witnesses — Criminal Law — Indorsement—Production—Res Gestae Witnesses — Statutes.
    The mandatory requirements for indorsement and production of witnesses apply only to res gestae witnesses (MCL 767.40; MSA 28.980).
    4. Witnesses — Criminal Law — Definitions—Res Gestae Witnesses.
    A res gestae witness is one who was an eyewitness to some event in the continuum of a criminal transaction and whose testimony will aid in developing a full disclosure of the facts surrounding the alleged commission of the charged offense; a res gestae witness is also a witness whose testimony is reasonably necessary to protect the defendant against a false accusation.

      5. Witnesses — Criminal Law — Res Gestae Witness — Production— Excused — Due Diligence — Court’s Discretion — Appeal and Error.
    A failure to produce a res gestae witness at a criminal trial may be excused where the prosecutor makes a showing of due diligence in searching for the witness; the determination of due diligence is entrusted to the discretion of the trial court and will be overturned on appeal only where a clear abuse of discretion is shown.
    6. Criminal Law — Constitutional Law — Felony-Firearm—Double Jeopardy — Statutes.
    A defendant who is found to have committed a felony and then found to have carried or had in his possession a firearm during the commission of that felony is not thereby subjected to double jeopardy, to double sentence, or to double punishment (MCL 750.227b; MSA 28.424[2]).
    Concurrence in Part, Dissent in Part by Bashara, J.
    7. Constitutional Law — Criminal Law — Double Jeopardy — Felony-Firearm — Sentence Augmenting Statute — Statutes.

      There is no double jeopardy problem with the felony-ñrearm statute if the statute is viewed as a sentence increasing or sentence augmenting statute, as was the intent of the Legislature, rather than viewed as a statute creating a separate and distinct felony (MCL 750.227[b]; MSA 28.424[2]).

    8. Criminal Law — Felony-Firearm—Additional Sentence — Statutes.

      That portion of the felony-ñrearm statute which sets forth an additional mandatory term of imprisonment for the conviction of an underlying felony when a ñrearm is used in its perpetration or attempted perpetration is valid (MCL 750.227[b]; MSA 28.424[2]X

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Robert F. Leonard, Prosecuting Attorney, Donald A. Kuebler, Chief, Appellate Division, and Edwin R. Brown, Assistant Prosecuting Attorney, for the people.

      Edwin M. Vater, for defendant.

      Before: Danhof, C.J., and Bashara and Cynar, JJ.
   Danhof, C.J.

On September 21, 1977, defendant was convicted by a jury of armed robbery, MCL 750.529; MSA 28.797, and possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). This case arose out of an incident occurring on March 19, 1977, in which two employees of Johnny’s Superette, Jeries Qumsyeh and Margaret Fox, were robbed at gunpoint by two men. On November 8, 1977, defendant was sentenced to a term of 10 to 20 years imprisonment on the armed robbery conviction and to a two-year term on the felony-firearm conviction. These sentences are consecutive, see MCL 750.227b(2); MSA 28.424(2). Defendant appeals as of right.

Defendant’s first claim on appeal is that the trial court erred reversibly by allowing the prosecutor to introduce into evidence testimony concerning other criminal acts by defendant. Margaret Fox, one of the victims, testified at trial and identified defendant as one of the men involved in the robbery. She also identified defendant, over defendant’s objection, as the same person who had committed an earlier robbery of the same store on February 22, 1977. The prosecutor argues that this evidence is admissible because the identity of the robber was in issue and this testimony tended to support the witness’s identification of the defendant by showing that she had another opportunity to observe the defendant under similar circumstances.

The general rule is that evidence of a distinct, unrelated crime is not admissible in a trial of a defendant charged with the commission of a different criminal offense. There are, however, several well accepted exceptions to this general rule, see MCL 768.27; MSA 28.1050. One common law exception to this rule is when the evidence offered tends to prove the identity of the person who committed the crime for which defendant is on trial, People v Spillman, 399 Mich 313; 249 NW2d 73 (1976), see also, People v Oliphant, 399 Mich 472; 250 NW2d 443 (1976), People v Wilkins, 82 Mich App 260; 266 NW2d 781 (1978).

In Spillman, supra, a proprietor of a bar was assaulted by armed men and his car was driven away. This incident took place while the proprietor was attempting to enter his automobile after closing his bar. At defendant’s trial, over objection, the proprietor testified that he had also observed the defendant in his bar approximately two weeks before the date in question while the defendant was in the process of perpetrating another armed robbery. On appeal, the Supreme Court reinstated defendant’s conviction stating:

"We believe that the disputed evidence fits within this common law exception to the general rule. The prior viewing of the defendant wearing the same coat, holding the same handgun, occurring under similar circumstances, tends to make this witness’ identification of defendant more credible.” Spillman, supra, at 320.

In the instant case, the identity of the robber was also in issue. The witness’s viewing of the defendant during a robbery approximately one month before this robbery, in the same store under similar circumstances, tends to make this witness’s identification of the defendant more credible. Although the introduction of this testimony may have a prejudicial effect, the trial court did not err reversibly in finding that the probative value of this evidence outweighed its prejudicial effect and in allowing this testimony into evidence, Spillman, supra.

Defendant also claims that reversal is required because the prosecutor failed to produce two res gestae witnesses for trial as required by MCL 767.40; MSA 28.980. Defendant contends that the prosecutor should have produced George Isaac who was not present at the commission of the offense but who had relayed information to the police which implicated defendant in this crime. Defendant also claims that the prosecutor failed to exercise due diligence in attempting to locate and produce an unidentified customer who had entered the store just as, or immediately after, the robbers fled the store. At trial, a hearing was held on these issues. The trial judge found that Isaac was not a res gestae witness since he was not present during the commission of the crime. The trial judge also found that the production of this witness was excused because the prosecutor, after exercising due diligence, was unable to locate and produce him. The trial judge found that the production of the customer was excused because his identity was unknown and the prosecutor had no means by which to locate him.

The mandatory requirements for indorsement and production in MCL 767.40; MSA 28.980, apply only to res gestae witnesses, see People v Rimson, 63 Mich App 1; 233 NW2d 867 (1975), People v Harrison, 44 Mich App 578; 205 NW2d 900 (1973). "A res gestae witness is one who was an eyewitness to some event in the continuum of a criminal transaction and whose testimony will aid in developing a full disclosure of the facts surrounding the alleged commission of the charged offense.” People v Hadley, 67 Mich App 688, 690; 242 NW2d 32 (1976). A res gestae witness has also been defined as "a witness whose testimony is reasonably necessary to protect the defendant against a false accusation”. Harrison, supra, at 591. The failure to produce a res gestae witness may be excused where the prosecutor makes a showing of due diligence in searching for the witness, People v Gibson, 253 Mich 476; 235 NW 225 (1931), Rimson, supra. The determination of whether due diligence has been shown is entrusted to the discretion of the trial court and will be overturned on appeal only where a clear abuse of discretion is shown, Rimson, supra.

Even under the more liberal definition of a res gestae witness, Isaac was not a res gestae witness. He was not an eyewitness to the crime. He was not present at the commission of the crime. From the transcript, it appears that his only involvement in this case was that he received a tip or incriminating information from some unidentified source which implicated the defendant in this crime and he relayed this information to the police. Therefore, it appears that Isaac had no independent personal knowledge of any part of the criminal transaction. The trial judge did not err in finding that Isaac was not a res gestae witness, see, People v Douglas, 52 Mich App 224; 216 NW2d 920 (1974).

In any event, the trial court did not abuse its discretion in finding that the prosecutor exercised due diligence in attempting to produce this witness for trial. The prosecutor contacted Isaac’s parents and discovered that he moved to somewhere in California, had no address where he could be contacted, was living in a van and was not expected to return until October, see People v Blacksmith, 66 Mich App 216; 238 NW2d 810 (1975), People v Douglas, 65 Mich App 107; 237 NW2d 204 (1975).

The failure to produce the customer is excused because his identity is unknown. The only lead the prosecutor uncovered on this witness’s identity was that an employee of the store stated that he might recognize this customer upon seeing him again but that he did not know the customer’s identity or how to locate him. The trial judge did not abuse his discretion in finding that the prosecutor had exercised due diligence in attempting to locate and produce this witness, see, People v Mack, 64 Mich App 587; 236 NW2d 523 (1975).

Defendant also claims that it is a violation of double jeopardy, US Const, Am V, Const 1963, art 1, § 15, to convict him of both armed robbery, MCL 750.529; MSA 28.797, and possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2), as a result of one criminal transaction. For the reasons stated in Judge Beasley’s opinion in People v Walter Johnson, 85 Mich App 654; 272 NW2d 605 (1978), we conclude that these convictions did not violate the double jeopardy clause.

Affirmed.

Cynar, J., concurred.

Bashara, J.

(concurring in part, dissenting in part). I am in complete agreement with Chief Judge Danhof’s opinion except as to the application of the felony-firearm statute. By virtue of People v McDowell, 85 Mich App 697; 272 NW2d 576 (1978), and People v Blount, 87 Mich App 501; 275 NW2d 21 (1978), I would vacate the conviction for felony-firearm but uphold the sentence imposed therefor.


author: R. B. Burns, J. Cynar, P.J.

text:
    PEOPLE v SEARS
    Docket No. 78-1313.
    Submitted November 14, 1978, at Lansing.
    Decided January 3, 1979.
    Tracy Sears was convicted of larceny in a building, Sanilac Circuit Court, Allen E. Keyes, J. The jury that sat at defendant’s trial was selected three weeks prior to trial in a procedure whereby the entire jury panel was assembled on one day and all defendants who had trials scheduled that month were required with their attorneys to choose a jury for their trial. Defense counsel objected that the procedure restricted defendant’s rights to conduct a voir dire of the jurors and to challenge the jurors. In the interval between the date the jury was selected and defendant’s trial, various members of his jury heard unspecified types of criminal trials. However, on the date set for trial, defendant was not given an opportunity to conduct a voir dire of the jury to ascertain whether any of the jurors had formed opinions prejudicial to defendant while sitting on these other trials. The defendant appeals. Held:

    This procedure of jury selection improperly restricted the defendant’s ability to conduct a voir dire of the jurors and engage in the reasonable exercise of challenges.
    Reversed and remanded.
    Cynar, P.J., dissented. He would hold that questions put to the jurors by the trial judge prior to trial sufficiently protected the defendant’s right to a fair trial in this case, although he does not favor the procedure used. He would affirm.
    Opinion of the Court
    1. Jury — Voir Dire — Challenges.
    To have a fair trial a litigant must be given a reasonable opportunity to ascertain on the voir dire whether any of the jurors summoned are subject to being challenged for cause or even peremptorily.
    References for Points in Headnotes

       47 Am Jur 2d, Jury § 195.

       47 Am Jur 2d, Jury §§ 198, 200.

       47 Am Jur 2d, Jury § 267.

      2. Jury — Voir Dire — Discretion op Trial Judge — Challenges.
    The scope of examination of jurors on voir dire is, in a large measure, within the discretion of the trial judge, but it must not be so limited as to exclude a showing of facts that would constitute ground for challenging for cause or the reasonable exercise of peremptory challenges; so to limit the examination is an abuse of discretion.
    Dissent by Cynar, P.J.
    3. Jury — Selection op Jury — Voir Dire — Right to Fair Trial.

      The selection of a jury for a defendant’s trial, three weeks prior to trial, in a procedure by which the entire jury panel was assembled on one day and all defendants who had trials scheduled that month were required with their attorneys to choose a jury for their trial, and various members of the jury heard unspeciñed types of criminal trials in the interval between the date the jury was selected and the defendant’s trial did not deprive the defendant of his right to a fair trial, even though the defendant was not given an opportunity to conduct a voir dire of the jury to ascertain whether any members of the jury had formed opinions prejudicial to the defendant while sitting on these other trials, where, prior to the start of the defendant’s trial, the trial judge asked the jurors if they had heard anything further about the defendant’s case, whether they had formed an opinion regarding the innocence or guilt of defendant, and whether anything had occurred that would cause them in any way to change their minds about anything and received negative responses to the questions.

      Kraus & Ferris, P.C., for defendant on appeal.
    Before: Cynar, P.J., and R. B. Burns and M. B. Breighner, JJ.

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

   R. B. Burns, J.

Defendant was convicted by a jury of larceny in a building, contrary to MCL 750.360; MSA 28.592, and appeals.

The jury that sat at defendant’s trial was selected three weeks prior to trial in a procedure by which the entire jury panel was assembled on one day and all defendants who had trials scheduled that month were required with their attorneys to choose a jury for their trial. Defense counsel objected that the procedure restricted defendant’s rights to conduct a voir dire of the jurors and to challenge the jurors. In the interval between the date the jury was selected and defendant’s trial, various members of his jury heard unspecified types of criminal trials. However, on the date set for trial, defendant was not given an opportunity to conduct a voir dire of the jury to ascertain whether any of the jurors had formed opinions prejudicial to defendant while sitting on these other trials.

In Fedorinchik v Stewart, 289 Mich 436, 438-439; 286 NW 673, 674 (1939), the Supreme Court wrote:

"It is indispensable to a fair trial that a litigant be given a reasonable opportunity to ascertain on the voir dire whether any of the jurors summoned are subject to being challenged for cause or even peremptorily. In a large measure the scope of. examination of jurors on voir dire is within the discretion of the trial judge; but it must not be so limited as to exclude a showing of facts that would constitute ground for challenging for cause or the reasonable exercise of peremptory challenges. So to limit the examination is an abuse of discretion.”

The procedure of jury selection in this case improperly restricted defendant’s ability to conduct a voir dire of the jurors and engage in the reasonable exercise of challenges.

Reversed and remanded.

M. B. Breighner, J., concurred.

Cynar, P.J.

(dissenting). I would affirm. No further voir dire was requested at the time of the trial. Furthermore, prior to the start of the trial the trial judge asked the jurors if they had heard anything further about the case since then; whether they had formed an opinion regarding the innocence or guilt of defendant; and whether anything had occurred that would cause them in any way to change their mind about anything. Although I do not favor the procedure used, I believe the jurors’ negative response to these questions plus the voir dire previously conducted sufficiently protected defendant’s right to a fair trial in this case.


author: R. B. Burns, P.J.

text:
    PEOPLE v FORNEY
    Docket No. 78-1584.
    Submitted December 11, 1978, at Lansing.
    Decided January 3, 1979.
    Nancy Forney was convicted, on her plea of guilty, of breaking and entering with intent to commit larceny, Iosco Circuit Court, Allan C. Miller, J. Tyrone Gillespie, J., sentenced the defendant to four years of probation with the first 90 days to be served in the county jail. The defendant appeals, claiming that the plea bargain was not fulfilled because the chief of police had assured her that she would receive probation if she pled guilty, and because she did not envision serving time in jail as part of probation. Held:

    A lay person does not envision "probation” to include incarceration. The agreement was not made between a prosecutor and a defense attorney who could appreciate the legal and technical implications of the plea agreement, but was made instead between a 19-year-old youth and the chief of police. The case is remanded to the trial court for resentencing in accordance with the intent of the original bargain.
    Conviction affirmed, and the case remanded for resentencing.
    1. Criminal Law — Sentences — Jail Term — County Jail — Statutes.
    A sentence of probation may require, as a condition of probation, that a defendant spend not more than 6 months in the county jail or house of corrections (MCL 771.3[3]; MSA 28.1133[3]).
    2. Criminal Law — Plea of Guilty — Plea Bargain — Probation — Jail Term — Statutes.
    A criminal case in which a defendant entered a plea of guilty in response to a promise that she would receive probation and did receive a sentence of probation, but was required to serve the first 90 days of the probation period in jail, should be remanded for resentencing in accordance with the intent of an original plea bargain where the plea agreement was reached between the chief of police and a 19-year-old youth, rather than between a prosecutor and a defense attorney who could appreciate the legal and technical implications that such an agreement could require a jail term of up to six months (MCL 771.3[3]; MSA 28.1133[3],

      References for Points in Headnotes

       21 Am Jur 2d, Criminal Law §§ 563-565.

       21 Am Jur 2d, Criminal Law §§ 563, 566.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Stephen H. Naegele, Prosecuting Attorney (Prosecuting Attorneys Appellate Service, Keith D. Roberts, Assistant Attorney General, of counsel), for the people.

      John A. Lydick and Gail Rodwan, Assistant State Appellate Defenders, for defendant on appeal.
    Before: R. B. Burns, P.J., and J. H. Gillis and V. J. Brennan, JJ.
   R. B. Burns, P.J.

Defendant pled guilty to breaking and entering with intent to commit larceny in violation of MCL 750.110; MSA 28.305. She was sentenced to 4 years probation with the first 90 days to be served in the county jail, and with credit for 38 days served.

She appeals on the theory that she pled guilty only because the chief of police assured her that she would receive probation and that she did not envision serving time in jail as part of probation.

This is an unusual case. There was a post plea hearing before the trial judge who accepted defendant’s guilty plea. He found that the chief investigative officer had promised that defendant would be granted probation in exchange for the cooperation of her husband. The trial judge then disqualified himself and deferred sentencing to another judge.

As previously stated, defendant did receive probation, but the first 90 days of the probation was to be served in the county jail.

MCL 771.3(3); MSA 28.1133(3) states in part:

"As a condition of probation, the court may require the probationer to be imprisoned in the county jail or the house of correction for not more than 6 months.”

However, in this case the agreement was not made by the defense attorney and the prosecutor, who could appreciate the legal and technical implications of such an agreement. The agreement was made between a 19-year-old youth and the chief of police.

In our opinion, a lay person does not envision incarceration as a part of "probation”.

The conviction is affirmed but the case is remanded to the trial court for resentencing in accordance with the intent of the original bargain.


author: D. F. Walsh, P.J.

text:
    FLINT BOARD OF EDUCATION v WILLIAMS
    Docket No. 78-2169.
    Submitted November 8, 1978, at Lansing.
    Decided January 3, 1979.
    Plaintiff, Flint Board of Education, petitioned the Genesee County Probate Court to take jurisdiction over defendant Patrick Williams, a handicapped minor, alleging that he had repeatedly violated school rules and regulations. The jury found that defendant had repeatedly violated such rules and regulations and the probate judge ordered that the defendant become a temporary ward of the probate court and that he be committed to the Department of Social Services for appropriate screening and placement. Defendant appealed to the Genesee Circuit Court. Donald R. Freeman, J., affirmed the probate court and denied a motion to stay the probate court’s order. Defendant applied to the Court of Appeals for leave to file an emergency appeal and for a stay of the probate court’s order. Leave to appeal was granted. The motion for a stay was denied. Held:

    1. The defendant is "handicapped” as that term is defined by the Legislature and the state board of education.
    2. A school board may petition a probate court to take jurisdiction over a handicapped student under the statute regarding the jurisdiction of the juvenile division of probate court only after administrative proceedings under the school code’s special education provisions have terminated and a final decision has been made that no program within the school system can adequately address the child’s special needs and satisfactorily develop the child’s maximum potential.
    3. It is the Legislature’s intent to provide special protection for handicapped students; therefore, it is consistent with such legislative intent that the general jurisdictional language in the probate code yield to the more particularized provisions written into the school code to insure protective treatment for handicapped students.

      References for Points in Headnotes

       68 Am Jur 2d, Schools § 215.

       68 Am Jur 2d, Schools § 219.

       73 Am Jur 2d, Statutes § 145.

       73 Am Jur 2d, Statutes § 187.

       73 Am Jur 2d, Statutes § 257.

       73 Am Jur 2d, Statutes §§ 265, 306.

       68 Am Jur 2d, Schools §§ 227, 230.

      4. The defendant is legally required to attend school until the age of 16, since none of the exceptions enumerated in the statute regarding compulsory education apply to him.
    5. Defendant and his mother were wrongfully denied their right to an Education Planning and Placement Committee determination and administrative review thereof before removal of defendant from the school system under the probate code; therefore, the probate court’s order denying defendant’s motion to dismiss on this ground is reversed.
    Reversed and remanded.
    1. Schools and School Districts — Handicapped Students — Probate Court — Administrative Law — School Code — Statutes.
    A school board may petition a probate court to take jurisdiction over a handicapped student, under the statute regarding the jurisdiction of the juvenile division of probate court, only after administrative proceedings under the school code’s special education provisions have terminated and a final decision has been made that no program within the school system -can adequately address the child’s special needs and satisfactorily develop the child’s maximum potential (MCL 380.1311, 712A.2[a][4]; MSA 15.41311, 27.3178[598.2][a][4]).
    2. Schools and School Districts — Special Education — Handicapped Students — Statutes.
    School boards shall establish plans for special education to focus on the delivery of special education programs designed to develop the maximum potential of handicapped students (MCL 380.1711; MSA 15.41711).
    3. Schools and School Districts — State Board of Education — School Code — Handicapped Students — Special Education — Administrative Law.
    The State Board of Education has promulgated detailed rules, under the rule-making power delegated to it by the Legislature in the school code, designed to protect a handicapped person’s statutory right to participate in special education programs; under such rules, school superintendents are required to appoint Educational Planning and Placement Committees to make recommendations concerning the educational status of handicapped children, and parents of handicapped children are entitled to notice of proposed educational placement, denial of placement, or change in educational status of their children and may challenge proposed action by requesting a hearing before an impartial hearing officer whose decision concerning educational placement or status of the handicapped person must be in writing and accompanied by written findings of fact and conclusions of law.
    4. Statutes — Construction — Legislative Intent.
    The premier rule of statutory construction is to discover and give effect to the intent of the Legislature.
    5. Statutes — Construction — In Pari Materia.
    Statutes which are in pari materia must be construed together and should be interpreted as complementary to each other.
    6. Statutes — Special — General — Construction.
    A special act must be viewed as an exception to a general act where there are two acts, one of which is special and particular and includes the matter in question, and the other of which is general, and which, if standing alone, would include the same matter and thus conflict with the special act.
    7. Statutes — Construction — Absurd Results.
    Statutes must be construed so as to avoid absurd results.
    8. Schools and School Districts — Required Attendance — Exceptions — Statutes.
    A child is legally required to attend school until the age of 16, unless one of the exceptions enumerated in the statute regarding compulsory education applies (MCL 380.1561; MSA 15.41561).

      Bellairs, Dean, Cooley & Siler, for plaintiff.

      Bennett S. Engelman, for defendant.
    Before: D. F. Walsh, P.J., and T. M. Burns and D. E. Holbrook, Jr., JJ.
   D. F. Walsh, P.J.

Defendant Patrick Williams appeals two orders of the Genesee County Circuit Court. The respective orders: (1) affirmed the ruling of the Genesee County Probate Court that the probate court could take jurisdiction over defendant under MCL 712A.2(a)(4); MSA 27.3178(598.2)(a)(4), and (2) denied defendant’s motion to stay the disposition order effectuating the verdict of a probate court jury. The order made defendant a temporary ward of the court and committed him to the state Department of Social Services for placement.

Defendant was born November 24, 1964. In 1971, after beginning school in the Flint school district, he was tested and placed in a special education program for the emotionally impaired (El). He continued in El classes throughout his school career.

On November 7, 1977, the Assistant Director of Pupil Personnel Services for the Flint Public Schools petitioned the Genesee County Probate Court to take jurisdiction over defendant. The petition alleged that defendant, who was required to attend school, had repeatedly violated school rules and regulations. MCL 712A.2(a)(4); MSA 27.3178(598.2)(a)(4).

Defendant moved to dismiss the petition on the ground, inter alia, that the probate court lacked jurisdiction over him. It was defendant’s position that he did not come within the purview of the above statute since he was not legally required to attend school. The probate judge, and the circuit judge on appeal, denied this motion. Defendant also moved unsuccessfully to dismiss the petition on the ground that plaintiff failed to exhaust the administrative remedies set forth in the school code. MCL 380.1701 et seq; MSA 15.41701 et seq.

After plaintiff filed its petition asking the probate court to take jurisdiction over defendant, defendant’s mother requested that a state board of education Educational Planning and Placement Committee (EPPC) meeting be held to determine if the school district’s special education program could continue to serve defendant’s special needs. The EPPC meeting was held on December 22, 1977. Defendant was found to be "emotionally impaired”. Formulation of an educational plan was postponed until termination of the probate court proceedings. Although defendant’s mother originally agreed to this postponement, she withdrew her consent six weeks before the trial began. It was defendant’s position throughout the probate court proceedings that plaintiff should have been required to complete the administrative process before petitioning the probate court to take jurisdiction over defendant.

Jury trial began on April 25, 1978. The testimony of school employees and officials described several instances of defendant’s violation of school rules. Defendant did not deny that he had been repeatedly involved in fights and other violence. The jury found that defendant had repeatedly violated rules and regulations of the Flint Public School system. The probate judge ordered that defendant become a temporary ward of the probate court and that he be committed to the Department of Social Services for appropriate screening and placement, with a recommendation of residential placement.

The main issue presented is one of apparent first impression in Michigan:

May a school board petition the probate court under MCL 712A.2(a)(4); MSA 27.3178(598.2)(a)(4) for removal of an emotionally impaired child before exhausting administrative procedures outlined in the school code and its rules with regard to formulating educational plans within the school system for emotionally impaired students?

Section 2 of the juvenile division of the probate code provides in pertinent part:

"Except as provided herein, the juvenile division of the probate court shall have:
"(a) Exclusive original jurisdiction superior to and regardless of the jurisdiction of any other court in proceedings concerning any child under 17 years of age found within the county.
"(4) Who, being required by law to attend school, wilfully and repeatedly absents himself therefrom, or repeatedly violates rules and regulations thereof * * * .” MCL 712A.2(a) (4); MSA 27.3178(598.2)(a)(4).

The school code contains a provision, however, which deals specifically with removal of possibly handicapped students from the school system:

"The [school] board may authorize or order the suspension or expulsion from school of a pupil guilty of gross misdemeanor or persistent disobedience when in the board’s judgment the interest of the school may demand the authorization or order. If there is reasonable cause to believe that the pupil is handicapped, and the school district has not evaluated the pupil in accordance with rules of the state board, the pupil shall be evaluated immediately by the intermediate school district of which the school district is constituent in accordance with section 1711.” MCL 380.1311: MSA 15.41311.

MCL 380.1711; MSA 15.41711 provides that school boards shall establish plans for special education. These plans are to focus on delivery of special education programs designed to develop the maximum potential of handicapped students.

Under the rule-making power delegated to it by the Legislature in the school code (MCL 380.1701; MSA 15.41701), the State Board of Education has promulgated detailed rules designed to protect a handicapped person’s statutory right to participate in special education programs. 1973 A ACS R 340.1721. School superintendents are required to appoint EPPC’s to make recommendations concerning the educational status of handicapped children. Parents of handicapped children are entitled to notice of proposed educational placement, denial of placement, or change in educational status of their children. Dissatisfied parents who wish to challenge proposed action may request a hearing before an impartial hearing officer. The decision of the officer concerning the educational placement or educational status of the handicapped person must be in writing and accompanied by written findings of fact and conclusions of law. 1973 AACS R 340.1722-340.1724.

Establishment of this legislative and administrative framework was necessary in order for Michigan to be eligible for Federal assistance for the education of handicapped children under the Education of the Handicapped Act, 20 USC 1401 et seq. That act sets forth detailed procedural safeguards for handicapped children and their parents with respect to the provision of free appropriate public education. 20 USC 1415. Parties aggrieved by decisions of local hearing officers must be given an opportunity to appeal to the state board of education. 20 USC 1415(c). State plans must assure that, to the maximum extent possible, handicapped children are educated with non-handicapped children and that special classes or other removal of handicapped children from the regular educational environment occurs only when the nature or severity of the handicap is such that education in regular classes with supplementary services cannot be achieved satisfactorily. 20 USC 1412(5).

It is undisputed that the instant defendant is "handicapped” as that term has been defined by the Legislature and the State Board of Education. MCL 380.4(2); MSA 15.4004(2), 1973 AACS R 340.1702.

Our task in the instant case is to determine the interrelationship, if any, between the probate court’s statutory authority to take jurisdiction over students who repeatedly violate school rules and the school code’s special treatment of handicapped persons.

The premier rule of statutory construction is to discover and give effect to the intent of the Legislature. Spartan Asphalt Paving Co v Grand Ledge Mobile Home Park, 400 Mich 184; 253 NW2d 646 (1977), reh den 400 Mich 1029 (1977). It is also a fundamental rule of statutory construction that statutes in pari materia must be construed together and should be interpreted as complementary to each other. Doan v Kellogg Community College, 80 Mich App 316, 320-321; 263 NW2d 357 (1977). In applying this latter rule we are guided by the following principle:

" * * * if it is natural and reasonable to think that members of the legislature or persons to be affected by a statute * * * would think about another statute and have their impressions derived from it influence their understanding of the act whose effect is in question, then a court called upon to construe the act in question should also allow its understanding of it to be influenced by impressions derived from the other statute. In other words, for this purpose the subject or object of a statute should be defined in terms of the range of probable awareness and probable attitudes about relevance by legislators and others concerned with the statute’s operation.” 2A Sutherland, Statutory Construction, § 51.03, pp 298-299.

We are further guided by the principle that, where there are two acts, one of which is special and particular and includes the matter in question, and the other of which is general, and which, if standing alone, would include the same matter and thus conflict with the special act, the special act must be viewed as an exception to the general. 21 Michigan Law & Practice, Statutes, §99, pp 117-118.

Plaintiff argues that the probate code and school code offer school boards alternative and independent remedies in dealing with handicapped students who, due to their handicap, repeatedly violate school rules. We are not so persuaded.

The school code and the rules promulgated thereunder deal in a special and particular way with handicapped persons within the school system. The probate code deals in general with all students who repeatedly violate school rules. It is true, of course, that in the case of handicapped children who repeatedly violate school rules the provisions of both codes would seem to have overlapping applicability.

Clearly, however, the Legislature intended to provide special protection for handicapped students. That intent is effectuated through a procedural framework within which parents of handicapped children are afforded administrative review of decisions concerning the placement of these children or their removal from school. If a school board may, as plaintiff suggests, unilaterally determine that a particular handicapped child cannot be accommodated in a special education program, bypass the administrative procedures for review of that determination and petition the probate court directly to take jurisdiction of the child and remove him from the school system, the intent of the Legislature would certainly be frustrated.

In such case, therefore, it is consistent with legislative intent that the general jurisdictional language in the probate code yield to the more particularized provisions written into the school code to insure protective treatment for handicapped students.

Accordingly, we hold that in the case of a handicapped student, a school board may petition the probate court to take jurisdiction over the student under MCL 712A.2(a)(4); MSA 27.3178(598.2)(a)(4), only after administrative proceedings under the school code’s special education provisions have terminated and a final decision has been made that no program within the school system can adequately address the child’s special needs and satisfactorily develop the child’s maximum potential.

Of the remaining issues raised on appeal, we address only one. It is defendant’s position that the probate court erred in assuming jurisdiction over him since he is not legally required to attend school. We find no merit in this argument. Statutes must be construed to avoid absurd results. Attorney General v Detroit United Railway, 210 Mich 227; 177 NW 726 (1920). The sole reasonable interpretation of MCL 380.1561; MSA 15.41561, is that, unless one of the enumerated exceptions applies, a child is legally required to attend school until the age of 16.

Defendant and his mother were wrongfully denied their right to an EPPC determination and administrative review thereof before removal of defendant from the school system under the probate code. The probate court’s order denying defendant’s motion to dismiss on this ground is reversed. Remanded for further proceedings consistent with this opinion. Costs to appellant.


author: Per Curiam.

text:
    PETROFF v PETROFF
    Docket No. 77-3959.
    Submitted November 1, 1978, at Lansing.
    Decided January 3, 1979.
    Margaret J. Petroff commenced an action against Nicholas A. Petroff for separate maintenance. The defendant filed a counter-complaint seeking a divorce. The Jackson Circuit Court, Gordon W. Britten, J., on the defendant’s motion, entered a default judgment of divorce. The plaintiff’s motion to set aside the default judgment was denied. Plaintiff appeals. Held:

    The plaintiff was not given the seven day notice, as required by the court rules, prior to the hearing on the defendant’s application for the default judgment. The trial court’s order denying the plaintiff’s motion to set aside the default judgment is reversed and the default judgment of divorce is vacated for failure to comply with the court rule on the required notice.
    Reversed.
    1. Judgment — Default Judgment — Setting Aside Default — Meritorious Defense — Court Rules.
    Ordinarily it is incumbent upon a party moving to set aside a default judgment to show good cause and to file an affidavit of facts showing a meritorious defense where no question of jurisdiction is raised in the proceeding (GCR 1963, 520.4).
    2. Judgment — Default Judgment — Setting Aside Default — Notice — Due Process — Meritorious Defense — Court Rules.
    A party seeking to enter a default judgment must comply with the notice requirement of the court rules because constitutional due process requires notice so that an opposing party is provided an opportunity to attend and present a claim or defense; where the notice requirement is not complied with, a party seeking to set aside the default is not required to show a meritorious defense in addition to good cause; the failure of the party seeking the entry of the default to give the required notice invalidates the judgment and it should be vacated (GCR 1963, 520.2[2]).

      References for Points in Headnotes

       46 Am Jur 2d, Judgments §§ 739, 740, 776.

       47 Am Jur 2d, Judgments §§ 1178, 1179.

      George J. Brannick, for plaintiff.

      Rappleye, Wilkins & Kobrin, for defendant.
    Before: M. J. Kelly, P.J., and J. H. Gillis and M. F. Cavanagh, JJ.
   Per Curiam.

The plaintiff appeals as of right from trial court orders denying her motion to set aside a default judgment of divorce.

The record indicates that on July 15, 1977, defense counsel filed a statement of default; a pro confesso hearing, at which only the defendant testified, was held on that date. The judgment of divorce was also entered on July 15, 1977.

The defendant clearly did not comply with GCR 1963, 520.2(2), which provides in relevant part:

"Judgment by default may be entered as follows:
"(2) By the Court. In all other cases the party entitled to a judgment by default shall apply to the court therefor; * * * . If the party against whom judgment by default is sought has appeared in the action, he * * * shall be served with written notice of the application for judgment at least 7 days prior to the hearing on such application.”

Ordinarily, where no question of jurisdiction is raised in the proceedings, it is incumbent upon the party moving to set aside the default judgment to show good cause and to file an affidavit of facts showing a meritorious defense. GCR 1963, 520.4; Mission Investment Co v Perfect Totalisator Corp, 51 Mich App 376; 214 NW2d 898 (1974).

In the case at bar, the trial court correctly ruled that the failure of the defendant to provide plaintiff with the seven days notice of application for default, as required by GCR 1963, 520.2(2), was a substantial defect in the proceedings satisfying the "good cause” requirement of GCR 1963, 520.4. However, the court further ruled that the plaintiff’s affidavits failed to demonstrate that she had a meritorious defense because she had failed to present any evidence that the property division was inequitable or fraudulent.

We are unable to address the question of whether or not plaintiff had a meritorious defense. Although the fairness of the property division was vigorously contested at oral argument, we have no record of the contested equities to review. We note only that the parties’ claims as to the value of their respective shares are widely disparate, and that a default judgment is a particularly unsatisfactory method of resolving disputes as to property divisions.

We turn to plaintiff’s allegation that the failure to comply with the notice provisions of GCR 1963, 520.2(2) constitutes "good cause” sufficient, by itself, to warrant setting aside a default judgment. GCR 1963, 520.4 makes it eminently clear that a party moving to set aside a judgment of default must demonstrate both good cause and a meritorious defense. However, the cases which deal with violations of GCR 1963, 520.2(2) do not, for the most part, require that the party moving to set aside default judgment show a meritorious defense in addition to good cause. See Rhodes v Rhodes, 3 Mich App 396; 142 NW2d 508 (1966) (dictum), Advance Dry Wall Co v Wolfe-Gilchrist, Inc, 14 Mich App 706; 165 NW2d 906 (1968), Lawrence v Cook, 36 Mich App 156; 193 NW2d 321 (1971), and Harrison v VMC Building Corp, 71 Mich App 458; 248 NW2d 584 (1976).

When asserting the failure to give the seven days notice required by GCR 1963, 520.2(2) as the ground for a motion to set aside a default judgment, a party need not file an affidavit of facts showing a meritorious defense. We hold that constitutional due process requires notice so that an opportunity is provided to attend and present a claim or defense. We think that GCR 1963, 520.2(2) is an expression of a fundamental concept of law. It is patently unfair to compel a party to demonstrate a meritorious defense in order to get a default judgment set aside when the manner in which the default judgment was entered constituted a denial of due process. A party is entitled to due process regardless of the merits of his claim or defense.

We hold that the notice provision of GCR 1963, 520.2(2) is mandatory and that the failure of the defendant in the instant case to give the required notice invalidates the judgment and requires it to be vacated. Harrison v VMC Building Corp, supra, at 461.

The trial court’s order denying the plaintiff’s motion to set aside the default judgment is reversed. The judgment is vacated for failure to comply with GCR 1963, 520.2(2). Costs to appellant.


text:
    SCHMIT v CITY OF DETROIT
    Docket No. 77-4594.
    Submitted October 4, 1978, at Detroit.
    Decided January 3, 1979.
    James L. Schmit brought an action against the City of Detroit in Wayne Circuit Court for damages for injuries sustained while climbing a ladder between the first and second levels of a diving platform at an outdoor swimming pool owned by the city. Plaintiff claims his injuries arose because the city failed to maintain the pool in a safe condition due to its negligent installation of anti-skid pads on the steps of the ladder. Defendant claims governmental immunity. Summary judgment for defendant, George T. Martin, J. Plaintiff appeals. Held:

    The public building exception to governmental immunity applies to a ladder located at an outdoor public swimming pool owned by the city; therefore, governmental immunity from tort liability is not an available defense.
    Reversed.
    1. Torts — Municipal Corporations — Governmental Immunity — Public Buildings Exception — Statutes.
    A ladder between the first and second levels of a diving platform at an outdoor public swimming pool comes within the public buildings exception of the governmental tort liability statute (MCL 691.1406; MSA 3.996[106]).
    2. Torts — Governmental Immunity — Public Buildings Exception.
    Application of the public building exception to governmental tort liability is not limited solely to buildings; in enacting the exception the Legislature intended to protect the general public from injury by imposing upon governmental agencies the duty to maintain safe public places (MCL 691.1406; MSA 3.996[106]).

      References for Points in Headnotes

       57 Am Jur 2d, Municipal, School, and State Tort Liability §§ 156, 157.
    Municipal operation of bathing beach or swimming pool as governmental or proprietary function, for purposes of tort liability. 55 ALR2d 1434.

       57 Am Jur 2d, Municipal, School, and State Tort Liability §§ 150-155.

      Norbach, Cheatham & MacArthur (by Stephen J. Smith), for plaintiff.

      Roger E. Craig, Corporation Counsel, William Dietrich and Gregory E. Snow, Assistants Corporation Counsel, for defendant.
    Before: Bronson, P.J., and M. J. Kelly and D. C. Riley, JJ.
   Per Curiam.

Plaintiff appeals an order granting defendant’s motion for summary judgment based on the defense of governmental immunity. MCL 691.1407; MSA 3.996(107).

Plaintiff was injured while climbing a ladder between the first and second levels of a diving platform at an outdoor swimming pool owned by defendant city. He claimed that the injuries arose because the city failed to maintain the pool in a safe condition due to its negligent installation of anti-skid pads on the steps of the ladder. Defendant claimed governmental immunity. Plaintiff argued that the defense was not applicable because defendant charged a nominal 75 cents admission charge, thereby making the operation of the pool a proprietary function instead of a governmental function. In the alternative, plaintiff claimed that even if the pool was a governmental function it came within the public building exception to the doctrine of governmental immunity. MCL 691.1406; MSA 3.996(106). The trial court agreed with defendant and held the defense of governmental immunity applicable.

We need not address plaintiff’s first argument because assuming arguendo that the operation of the pool in question was a governmental function the case comes within the public building exception and the defense of governmental immunity is not applicable.

In Pichette v Manistique Public Schools, 403 Mich 268; 269 NW2d 143 (1978), the Michigan Supreme Court held that the public building exception applied to a slide located on a public playground and for this reason governmental immunity did not bar a suit for damages caused by the negligent maintenance of the slide. In so holding, the Court refused to narrowly construe the exception so as to limit its application solely to buildings. Instead, the Court held that in enacting the exception, "the Legislature intended to protect the general public from injury by imposing upon governmental agencies the duty to maintain safe public places”. Pichette at 285.

Since the pool and its ladder is just as much a public place as was the playground and slide in Pichette, the public building exception applies and governmental immunity is not an available defense.

Reversed.

       But see Berger v City of Berkley, 87 Mich App 361; 275 NW2d 2 (1978) (Bronson, J., concurring), which would hold that the defense of governmental immunity should only be applied to those activities of a governmental unit which could be considered planning or policy making functions and not to cases such as the present when the activity involved is merely an operational activity of the governmental unit.

       This quotation was taken from the principal opinion authored by Justice Fitzgerald and concurred in by Chief Justice Kavanagh and Justice Levin. In a separate opinion Justice Williams states that he agrees with the result and reasoning of this part of the principal opinion. Therefore a majority of the Court has adopted this position.


text:
    KINCHION v BURNETT
    Docket No. 77-5019.
    Submitted November 1, 1978, at Lansing.
    Decided January 3, 1979.
    Elsie M. Kinchion commenced an action for damages for personal injuries against Edgar Burnett and Lenore Burnett, alleging that her injuries were caused when she was struck by the defendants’ automobile. The defendants denied all liability, claiming that they had not struck the plaintiff. The case was placed on the Oakland County mediation docket over the defendants’ objection. The mediation panel issued a finding of no probable liability.
    The matter then came before the Oakland Circuit Court. The defendants still denied liability, but agreed that, if liability were found, damages would exceed $10,000. The trial court, James S. Thorburn, J., then gave the plaintiff a choice between further mediation on the issue of the value of the claim or remand to district court. The plaintiff opted for remand to district court. The defendants appeal by leave granted. Held:

    (1) The trial court improperly looked at the settlement value and not at the amount of damages involved in determining that the case was within the jurisdictional limits of the district court. Since the amount of damages did exceed $10,000, the case should not have been remanded to district court.
    (2) The case should not have been sent to the mediation panel at all since only cases of "probable liability” are to be placed in mediation.
    Reversed and remanded.
    1. Courts — District Court — Jurisdiction — Jurisdictional Limits — Statutes.
    Exclusive jurisdiction is granted to district court where the amount of damages does not exceed $10,000 (MCL 600.8301; MSA 27A.8301).
    References for Points in Headnotes

       20 Am Jur 2d, Courts § 154.

       20 Am Jur 2d, Courts §§ 154,155.

       20 Am Jur 2d, Courts § 155.

       57 Am Jur 2d, Negligence § 32-

      2. Courts — Circuit Court — District Court — Jurisdiction — Removal to District Court — Jurisdictional Limits — States — Court Rules.
    An action commenced in circuit court may be removed to district court, on the motion of the circuit court or on the motion of the parties, if (1) it appears that the claimant’s damages may be less than the jurisdictional maximum otherwise applicable in the lower court to which the action is removed, and (2) removal will expedite the trial and disposition of the action (MCL 600.641[1]; MSA 27A.641[1], GCR 1963, 707.1).
    3. Courts — District Court — Removal to District Court — Jurisdictional Limits — Damages — Settlement Value — Statutes.
    The fact that a defendant is not willing to pay anything to settle a case does not necessarily make the case valueless and, therefore, within the jurisdictional limit of the district court; the criterion to be used in determining whether a case should be removed to district court is damages, not settlement value (MCL 600.641[1]; MSA 27A.641[1]).
    4. Negligence — Mediation — Liability.
    A case of no probable liability should not be placed in mediation.

      Marston, Sachs, Nunn, Kates, Kadushin & O’Hare, P.C. (by Kathleen L. Bogas), for plaintiff.

      Romain, Donofrio & Kuck, PC., for defendants.
    Before: M. J. Kelly, P.J., and J. H. Gillis and M. F. Cavanagh, JJ.
   Per Curiam.

Plaintiff filed suit charging defendants with negligence. The basis for the suit was plaintiff’s claim that she had been struck by defendants’ automobile, sustaining injuries and resulting medical expenses of $12,000. Defendants denied all liability, claiming they had not struck plaintiff, but rather her injuries were due to a slip and fall on a patch of ice.

The case was placed on the Oakland County mediation docket over defendants’ objections. The mediation panel issued a finding of no probable liability.

The matter came before the Oakland County Circuit Court on November 17, 1977. At that time plaintiff demanded $25,000 and refused to settle for less. Defendants denied liability, but agreed that, if liability were found, damages would exceed $10,000. Defendants refused to make any settlement offer. The trial court then gave plaintiff a choice between further mediation on the issue of "value” or remand to district court. Plaintiff opted for the latter.

Defendants sought leave to appeal from this order, which this Court granted. On appeal, defendants claim the trial court erred in remanding the case to district court since the amount of damages exceeded the jurisdictional limit for district court.

Exclusive jurisdiction is granted to district court where the amount of damages does not exceed $10,000. MCL 600.8301; MSA 27A.8301. When an action has been commenced in circuit court it may be removed to district court under certain circumstances. MCL 600.641(1); MSA 27A.641(1) provides:

"If it appears at the conclusion of a pretrial hearing on an action commenced in the circuit court that the amount of damages sustained may be less than the jurisdictional limitation as to the amount in controversy applicable to the lower court, the circuit judge may, without the consent of the parties, remove such action to any lower court within the county which would have had jurisdiction but for the amount of damages demanded and in which venue would have been proper.”

In addition, GCR 1963, 707.1 provides:

"Removal of actions to a lower court pursuant to RJA § 641 may be ordered by the Court on its own motion or on motion of the parties only if
"(a) it appears that the claimant’s damages may be less than the jurisdictional maximum otherwise applicable in the lower court to which the action is removed, and
"(b) removal will expedite the trial and disposition of the action.”

In the instant case it was not disputed that plaintiff spent 91 days in the hospital and sustained $12,000 in medical expenses alone. Hence, it is clear that if defendants are found to be liable the damages should exceed the jurisdictional limit of district court.

The circuit court based the remand upon the theory that since defendants would pay nothing to settle the case it was valueless and, therefore, within the jurisdictional limit of district court. This was not a proper application of RJA § 641. The statute uses the word "damages” not "settlement value” as the criterion to be used in determining whether a case should be removed to district court.

In many negligence cases brought in circuit court the defendant denies liability. Because the defendant thinks the case has no settlement value or because a mediation panel found "no probable liability” does not vest the circuit court with power to remove the action to district court. The issues of liability and damages are separate and distinct. It is only the latter that can be examined for purposes of RJA § 641 and GCR 1963, 707.1. We conclude that the circuit court erred in removing the case to district court.

We also question the propriety of sending this case to mediation over defendants’ objections. The mediation panel issued a finding of "no probable liability”. The judge then gave plaintiff the option of trial in district court or further mediation.

Oakland County Court Rule 18 provides that cases submitted for mediation "shall be civil cases of probable liability”. We are unable to ascertain what facts led the circuit court to believe the case was one of probable liability. Defendants denied ever striking plaintiff, claiming she injured herself when she slipped on some ice.

In any event, once the mediation panel issued a finding of "no probable liability” it was evident that the case did not fall within the ambit of Rule 18. In ordering further mediation the lower court recognized that the first panel had failed to ascribe a value to the case as is their function. However, since a case of no probable liability should not be placed in mediation at all, the lower court should not have offered the option of further mediation.

The order of the circuit court is reversed and the case is remanded to the circuit court for proceedings consistent with this opinion. Costs to defendants.

       Rules of the Circuit Court for the Sixth Judicial Circuit — Oakland County, Rule 18, reads in pertinent part as follows:
      "Certain cases may be selected and submitted to mediation. These shall be civil cases of probable liability wherein the relief sought is exclusively money damages and do not involve complex legal or factual issues.”


text:
    McINTOSH v CITY OF MUSKEGON
    Docket No. 78-733.
    Submitted October 4, 1978, at Grand Rapids.
    Decided January 3, 1979.
    Leave to appeal applied for.
    Julian G. McIntosh, North J. Bourne and Hugh A. White, co-trustees of the trust under the will of the estate of Charles A. L. McIntosh, and Allied Stores of Michigan, Inc. brought an action against the City of Muskegon to recover a special assessment which had been paid under protest. The Brass Company was added as a party plaintiff by stipulation. The special assessments had been levied against the plaintiffs’ properties to finance the annual operation and maintenance of a shopping mall. Plaintiffs’ properties abutted the mall. The Muskegon Circuit Court, Ronald M. Ryan, J., granted summary judgment for the city, and the plaintiffs appeal, alleging that the city has no authority to levy the special assessments for the mail’s maintenance and operations. Held:

    The circuit court properly found that the city had the authority to levy the special assessments, but, whereas the circuit court found that the authority was implicit in the statute which authorizes the city to levy assessments for construction of a mall, the Court of Appeals concludes that the authority is specifically provided in the statute.
    Affirmed.
    Municipal Corporations — Statutes — Shopping Malls — Special Assessments.
    A city is specifically granted, by statute, the authority to acquire lands for the construction of a shopping mall and to levy a special assessment against lands which comprise an integral part of such a mall for the purpose of financing the construction of the mall, and a strict construction of the statute reveals that a special assessment against such lands for the ongoing maintenance and operation of the mall is also specifically authorized (MCL 125.981, 125.982; MSA 5.3533[1], 5.3533[2]).
    References for Points in Headnote
    56 Am Jur 2d, Municipal Corporations, Counties, and Other Political Subdivisions § 532.
    70 Am Jur 2d, Special or Local Assessments § 9.

      Parmenter, Forsythe, Rude, Van Epps & Briggs, for plaintiffs.

      O’Toole, Stevens, Schuler, Johnson, Hipkiss, Piasecki & Knowlton (by Harold M. Strut), for defendant.
    Before: D. F. Walsh, P.J., and T. M. Burns and C. J. Byrns, JJ.

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

   Per Curiam.

The issue in this case is whether the defendant City of Muskegon is authorized by 1961 PA 120, MCL 125.981 et seq.; MSA 5.3533(1) et seq., to levy a special assessment on plaintiffs’ property to raise funds for the annual operation and maintenance of the Muskegon Mall which was constructed by the city under the act.

Plaintiffs, property owners abutting the mall, filed this action to recover the special assessment tax paid under protest in 1976. During the pendency of the suit the parties stipulated to inclusion of the assessments for 1977 and 1978. The question narrowed to the issues stated above and both parties filed motions for summary judgment under GCR 1963, 117.2(3), claiming their respective interpretation of the statute was correct. The trial court concluded that the city was empowered to levy a special assessment solely for operation and maintenance of the mall and granted judgment for the city in a written opinion. Plaintiffs appeal.

The statute provides in relevant part:

"Sec. 1. Any city with a master plan for the physical development of the city, which includes therein the redevelopment of a principal shopping area, in respect to such redevelopment project may:
"(f) Construct malls with such bus stops, information centers and other buildings as will serve the public interest.
"(g) Acquire by purchase, gift or condemnation and to own, maintain or operate any lands necessary to accomplish the foregoing.” MCL 125.981; MSA 5.3533(1).
"Sec. 2. The cost of the whole or any part of a redevelopment project as authorized in this act may be financed by any one or more of the following methods:
"(e) By the levying of special assessments against lands.” MCL 125.982; MSA 5.3533(2).

Plaintiffs do not challenge the authority of defendant to levy a special assessment for construction of the mall, but argue there is ho authority to levy a special assessment for operation and maintenance of the mall. Under plaintiffs’ construction Of the statute, that authority is not specifically granted and, under Sebewaing Industries, Inc v Village of Sebewaing, 337 Mich 530, 546; 60 NW2d 444 (1953), and similar cases, a court cannot infer a power the Legislature has not specifically provided for a municipality. See, 13 McQuillin, Municipal Corporations (3d ed), §§ 37.23, 37.24.

Both parties and the trial court agree that the language of § 1(f) and (g) is not as clear or explicit as it could have been. However, we find it unnecessary to imply any authority to levy special assessments for maintenance and operation, as the trial court did, because we are convinced that the authority to so tax was specifically granted by the Legislature.

Section 1(g), quoted above, empowers the city "to own, maintain or operate any lands necessary to accomplish the foregoing”. The "foregoing” in this context obviously refers to subparagraphs (a) through (f) which precede subparagraph (g) in this section of the act.

The only previous subparagraph to which the last clause of subparagraph (g) could possibly refer in the present context is subparagraph (f), which empowers defendant city to "construct malls with such bus stops, information centers and other buildings as will serve the public interest”.

It is essential to note two important facts. First, the lands on which the city has levied a special assessment comprise an integral part of the enclosed mall itself and thus are without doubt, "lands necessary to accomplish the foregoing”, i.e., lands necessary to accomplish the construction of a mall with bus stops, information centers and other buildings serving the public interest. Without the stores there would be no mall.

Secondly, it is essential to note that the empowering language in subparagraph (g) authorizes defendant to "maintain or operate any lands necessary to accomplish the foregoing”. (Emphasis added.) The words maintain and operate, as utilized in subparagraph (g), connote continuing and ongoing actions on defendant’s part. A reading of subparagraphs (f) and (g) in pari materia requires the conclusion that defendant is authorized to maintain or operate, on a continuing basis, the lands constituting the mall itself.

Since the maintenance or operation of this property is authorized by subparagraphs (f) and (g), the city is also authorized, by virtue of MCL 125.982(e); MSA 5.3533(2)(e), to levy a special assessment against plaintiffs’ property to fund the operation and maintenance of the mall property on a continuing basis. The specific statutory language itself empowers defendant to levy the special assessment, and it is thus unnecessary to hold, as the trial judge did, that although the statute does not specifically authorize defendant’s action, it does so implicitly if liberally construed. Strict construction of the statute does not require that a court ignore a grant of power which can be found under general rules of statutory construction.

Affirmed.


author:
Per Curiam.
      Cynar, J.

text:
    PEOPLE v HAGEWOOD
    Docket No. 78-1165.
    Submitted August 31, 1978, at Lansing.
    Decided January 3, 1979.
    Defendant Steven K. Hagewood pled guilty to armed robbery after making a bargain with the prosecutor that there would be a ten-year maximum sentence. This bargain was placed in the record, the plea was accepted and the judge ordered a presentence report. Upon learning of defendant’s prior criminal record, the judge informed defendant that the ten-year maximum sentence recommended by the prosecutor was unacceptable and allowed the defendant the option of withdrawing his plea or continuing the proceeding and receiving a 15-year maximum sentence. Defendant withdrew his plea and the trial judge disqualified himself. The case was reassigned to another judge and defendant again entered a plea of guilty, this time in exchange for a 12-year maximum sentence. His plea was accepted in the Macomb Circuit Court, Raymond R. Cashen, J. Defendant appeals. Held:

    Sentencing is within the exclusive province of the judiciary and no sentencing agreement between the prosecutor and defendant is binding on the court. The acts of the judge in allowing defendant to withdraw his plea and disqualifying himself were proper.
    Affirmed.
    Cynar, J., concurred separately. He added that, in the future, judges in such situations should inform defendants that such bargains amount to a mere sentence recommendation, not binding on the court.
    Opinion of the Court
    1. Criminal Law — Sentencing — Judicial Authority — Plea Bargains — Sentence Bargains — Statutes.
    The authority to pronounce sentence is within the exclusive province of the judiciary; neither the prosecution nor the defendant can bind the court with a sentence bargain (MCL 761.1; MSA 28.1072).

      References for Points in Headnotes

       21 Am Jur 2d, Criminal Law §§ 493, 527.

       21 Am Jur 2d, Criminal Law §§ 503, 504.

       21 Am Jur 2d, Criminal Law § 493.

      2. Criminal Law — Plea of Guilty — Plea Bargains — Sentencing.
    The trial court did not err in allowing a defendant to withdraw his guilty plea and proceed before a new judge where the defendant’s plea of guilty was based on a bargain providing for a ten-year maximum sentence, where, upon learning of the defendant’s criminal record, the court informed the defendant that the bargained-for ten-year maximum sentence was unacceptable to him and where the defendant was given the option of withdrawing his plea or proceeding and receiving a 15-year maximum sentence.
    Concurrence by Cynar, J.
    3. Criminal Law — Plea of Guilty — Plea Bargains — Sentencing.

      A sentence agreement between the prosecutor and defendant amounts to nothing more than a sentence recommendation and is not binding on the court.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, George N. Parris, Prosecuting Attorney, Don L. Milbourn, Chief Appellate Lawyer, and Antonio Cavaliere, Assistant Prosecuting Attorney, for the people.

      Daner, Freeman, McKenzie & Matthews, P.C. (by Daniel T. Stepek), for defendant on appeal.
    Before: M. J. Kelly, P.J., and Bronson and Cynar, JJ.
   Per Curiam.

Defendant pled guilty to the crime of armed robbery, MCL 750.529; MSA 28.797. He now appeals as of right.

The prosecution and defendant entered into a plea bargain in which defendant would plead guilty to one count of armed robbery in exchange for a maximum sentence of ten years in prison. This bargain was set forth on the record before the trial judge who accepted the plea and sent the matter to the probation department for a presentence report. After receiving the report, which showed that defendant had numerous previous convictions, the trial judge stated that he could not accept the ten-year maximum sentence recommended by the prosecutor. He then gave defendant the option of withdrawing his plea or continuing on with the present proceeding in which case he would be given a 15-year maximum sentence. Defendant chose to withdraw his plea whereby the trial judge disqualified himself and sent the case to another judge. After further plea negotiations defendant again pled guilty, this time in exchange for a 12-year maximum sentence. The sentence was accepted by the second judge.

Defendant now appeals stating that he should be given specific performance of the original bargain.

In order to properly evaluate this case, its exact legal posture must be recognized. First, there is no allegation that defendant withheld material information from the prosecutor or the court during plea negotiations. Therefore, the rule announced in People v Cummings, 84 Mich App 509; 269 NW2d 658 (1978), which allows the plea to be set aside upon the prosecutor’s motion, is not applicable. Secondly, this is not a case where the bargain was broken because of the misconduct of the prosecutor, and the rule announced in Santobello v New York, 404 US 257; 92 S Ct 495; 30 L Ed 2d 427 (1971), which would permit the option of specific performance of the plea agreement, is not applicable. Finally, this case is not one where the trial court impermissibly interfered with the charging power of the prosecutor by refusing to accept a plea to the crime charged. People v Matulonis, 60 Mich App 143; 230 NW2d 347 (1975). See Genesee Prosecutor v Genesee Circuit Judge, 391 Mich 115; 215 NW2d 145 (1974).

The present case is simply one wherein the trial court refused to accept the sentence recommendation of the prosecutor. The authority to pronounce sentence is within the exclusive province of the judiciary, People v White, 41 Mich App 370, 379; 200 NW2d 326 (1972), aff’d, 390 Mich 245, 259-260, fn 9; 212 NW2d 222 (1973), MCL 769.1; MSA 28.1072, and neither the prosecution nor the defendant can bind the court with a sentence bargain. We conclude that the trial court was within its authority when it refused to accept the sentence bargain.

We recognize that although a sentence bargain is not binding on the trial court, it would nonetheless be most unfair to a defendant to allow the trial court to sentence him as it thought necessary, but hold him to his guilty plea which was specifically made in exchange for a particular maximum sentence. In the interest of fairness, therefore, upon learning that the trial court will not accept the sentence bargain worked out by the defendant and the prosecution, defendant should be given the opportunity to withdraw his guilty plea. ABA Standards, Pleas of Guilty, § 3.3 (Approved Draft, 1968).

In the present case, the trial court, after refusing to accept the sentence bargain, gave the defendant the opportunity to withdraw his plea of guilty, which defendant did. The judge disqualified himself and the case was given to another judge. This procedure was entirely proper and regular; no error was committed.

Affirmed.

Cynar, J.

(concurring). I agree with the analysis and result reached by the majority. I write separately only to emphasize additional points.

Since the prosecutor could not bind the trial judge as to the maximum sentence, the sentence agreement between the prosecutor and defendant was nothing more than a sentence recommendation. In accepting defendant’s plea, the sentencing judge did not bind himself to the ten-year sentence recommended by the prosecutor. Rather, he merely accepted the plea as given, subject to the sentencing recommendation. His power to pronounce sentence was still left intact.

However, in such a situation the defendant may have been misled into believing the prosecutor’s recommendation was binding. Thus, a subsequent decision not to follow the prosecutor’s recommendation may appear to the defendant to be a unilateral rejection of a previously agreed-upon bargain.

I agree with the majority’s solution to this problem. However, it appears the judge in such a situation should inform the defendant that the recommendation is not binding. In this way, a defendant knows the precise extent of the benefit received in the bargain.