Petition for Writ of Certiorari — Konrad v. Michigan

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Fr . ED

92-53 JUN 10 1992

No. DFFICE OF THE CLERK

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1991

MARK KONRAD,

Petitioner

THE PEOPLE OF THE STATE OF MICHIGAN,

Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT

OF THE STATE OF MICHIGAN

Michigan Supreme Court No 92590

PETITION FOR A WRIT OF CERTIORARI

CARL ZIEMBA

Attorney for Petitioner

Counsel of Record

703 W Hancock

Detroit, Michigan 48201

(313) 833 5145

Gif

QUESTION PRESENTED

WAS PETITIONER PLACED TWICE IN JEOPARDY FOR

THE SAME ACT WHEN, AFTER THE JUDGMENT OF

THE MICHIGAN COURT OF APPEALS REVERSING

PETITIONER'S CONVICTIONS AND DISCHARGING

PETITIONER BECAME FINAL, THE MICHIGAN

SUPREME COURT GRANTED THE STATE'S OUT OF

TIME APPLICATION FOR LEAVE TO APPEAL AND

VACATED THE JUDGMENT OF THE MICHIGAN COURT

OF APPEALS?

TABLE OF CONTENTS

QUESTION PRESENTED

AUTHORITIES CITED

ORDERS BELOW

STATEMENT OF JURISDICTION

CONSTITUTIONAL PROVISIONS INVOLVED

STATEMENT OF THE CASE

REASONS FOR GRANTING THE WRIT

CONCLUSION

APPENDIX

Order of Michigan Supreme Court

Vacating Court of Appeals Judgment

Order of Michigan Supreme Court

Denying Reconsideration

Order of Trial Court Dismissing

Charges

iii

AUTHORITIES CITED

CASES:

Abney v United States, 431 US 651 (1977)

Bassett v Trinity Bldg Co, 254 Mich 207

(1931) . e 7 7 ~ oe . e . . ° e ~

Benton v Maryland, 395 US 784 (1969)

Bolton v Cummings, 200 Mich 234 (1918)

Chicago, D&CGTJ R Co v Simons, 210 Mich

PCIe £ koe ee ea a ye

German American Seminary v Saenger,

66 Mich 249 (1887) . ‘eee es

Hoffman v Security Trust Co,

256 Mich 383 (1931) :

J F Hartz v Lukaszewski, 200 Mich 230

(1918) . 7 - - ° 7 . . 7 o e e ~ = .

Missouri v Lewis [Bowman v Lewis],

101 US 22, 25 L Ed 989 (1879)

Moore v City of Detroit,

424 Mich 905 (1986) .

Moore v Spangler, 401 Mich 360 (1977)

Munroe, Boyce & Co. v. Ward,

207 Mich 369 (1919) ....

People v Burton, 429 Mich 133 (1987)

People v Coles, 417 Mich 523 (1983)

People v George, 399 Mich 638 (1977)

People v Konrad, 439 Mich 947 (1992)

Page

12,14

ames

AUTHORITIES CITED (cont)

CASES: Page

People v Phillips, 416 Mich 63 (1982) ... 21

Perkins v Perkins, 173 Mich 690 (1913). .13,17

Potaschnik v Kaimola, 216 Mich 406 (1921) . ll

Puffer v Clark, 202 Mich 169 (1918) .... 13

Township of Cooper v Little, 220 Mich 62

(1922) Y 7 . ~ ° . a e . e e o . * ° o e » 14

United States v rer 858 F2d 58

(CA2 1988) .... or ae oe ae ee ee ee oe ee

United States v Jenkins, 420 US 358 (1975) 27

United States v Martin Linen _— ie

430 US S64 (1977) . . 2 « « eee

OTHER:

we. SEC Gee. AZS7(S) 2 2 st tk eee we le slh CUS

Compiled Laws [MCL] 600.212 - 600.223... 8

Pitt® Amencment. « « «© «+ « «© © © » «© © «© ohgeo

Fourteenth Amendment ..... ++ « «© « « 3

GOR 1965, 7.204(A) 1. « ws sw sw we vw woo aw oc JG

OCR 2965, F.2050F) « ws ts ww ee we cw sl

a > a a ee a a a a ee ee

MOE 77G.32 wee see vnevssesesew OO

Bich Const 1963, art 6, sec 4, « «© «© © « e 6

AUTHORITIES CITED (cont )

OTHER:

Mich Const 1963, art l, sec 20

Michigan Court Rule 1985, Rule 7.302

Michigan Court Rules 1985, 7.301

Page

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1991

MARK KONRAD,

Petitioner

THE PEOPLE OF THE STATE OF MICHIGAN,

Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT

OF THE STATE OF MICHIGAN

Michigan Supreme Court No 92590

PETITION FOR A WRIT OF CERTIORARI

Mark Konrad, by his attorney, Carl Ziemba,

prays that a writ of certiorari issue to review

the Order of the Michigan Supreme Court entered

in this cause on March 5, 1992, reconsideration

denied by Order dated May 29, 1992.

ORDERS BELOW

The Order of the Michigan Supreme Court is

reported in summary fashion in People v Konrad,

439 Mich 947 (1992). The full Order of the

Court is printed below as Appendix, la.

STATEMENT OF JURISDICTION

The Order appealed from was entered on March

5, 1992. The Order denying reconsideration is

dated May 29, 1992. This Court's jurisdiction

is invoked under 28 USC Sec. 1257(3).

In addition, since the order appealed from

Subjects petitioner to jeopardy twice for the

same act, review by this Court at this time is

appropriate under the principles set ferth in

Abney v United States, 431 US 651 (1977).

CONSTITUTIONAL PROVISION INVOLVED

The Fifth Amendment to the United States

Constitution provides, in pertinent part:

'No person shall . . . be subject for the

same offense to be twice put in jeopardy of

life or limb; .. .'

The Fourteenth Amendment provides, in per

tinent part: \

'., . . No state shall make or enforce any law

which shall abridge the privileges or im-

munities of citizen§ of the United States;

nor shall any State deprive any person of

life, liberty, or property, without due

process of law; nor deny to any person within

its jurisdictions the equal protection of the

laws.'

STATEMENT OF THE CASE

Petitioner was convicted by jury in the

Recorder's Court for the City of Detroit of the

offenses of possession of over 650 grams of

cocaine and of conspiracy to possess over 650

grams of cocaine. He was sentenced to life

imprisonment with no hope of parole on each

conviction. lie appealed his convictions as a

matter of right in timely manner to the Michigan

Court of Appeals and raised several issues of

error.

Addressing but one of the issues raised by

petitioner, the Michigan Court of Appeals ruled

that the trial court had lost jurisdiction to

try petitioner because the state had violated

provisions of the Interstate Agreement on

Detainers, and the Michigan Court of Appeals

reversed petitioner's convictions and ordered

his discharge without day.

The state filed in timely manner a motion for

rehearing in the Michigan Court of Appeals; this

motion was duly denied.

The state then filed an application for leave

to appeal in the Michigan Supreme Court. How-

ever, the state did not file its application for

leave to appeal within the 21 days provided for

by the rules.

The Michigan Supreme Court considered the

Said application as a delayed application for

leave to appeal, and ‘in lieu of granting leave

ieeennniee

to appeal’, the Court vacated the judgment of

the Michigan Court of Appeals and remanded the

case to the trial court for a hearing and

findings on the question whether defendant ever

made a request for a final disposition of his

case.

Petitioner in timely manner filed his motion

for reconsideration of the said Order. Petition-

er argued that when the state failed to file

its application for leave to appeal in the

Michigan Supreme Court within the 21 days

allowed by the rules, the judgment of the

Michigan Court of Appeals became final, and that

the granting to the state by the Michigan

Supreme Court of leave to file a delayed appeal

and the vacating of the final judgment of the

Michigan Court of Appeals constituted a viola-

tion of petitioner's right under the Fifth

Amendment against double jeopardy.

The Michigan Supreme Court denied reconsider-

ation. See Order in Appendix, 5a.

The trial court, following the reversal of

petitioner's convictions by the Michigan Court

of Appeals, issued an order dismissing the

charges against petitioner. See Order in

Appendix, 7a.

Petitioner was discharged from custody and at

date hereof is at liberty and gainfully employ-

ed.

REASONS FOR GRANTING THE WRIT

The state of Michigan has a two tier appel-

late court system. Appeals as of right, both

Civil and criminal, are taken to the Michigan

Court of Appeals. Any party dissatisfied with

the judgment rendered by the Michigan Court of

Appeals may, within 21 days of that judgment,

file an application for leave to appeal in the

Michigan Supreme Court. In its discretion, the

Michigan Supreme Court may grant leave to

appeal.

Petitioner's position in applying for cer-

tiorari is the following:

(1) Under Michigan Court Rules, a party

has 21 days fromthe entry of a judgment

of the Michigan Court of Appeals to file

an application for leave to appeal in

the Michigan Supreme Court, an appeal to

the Michigan Supreme Court being discre-

tionary;

(2) the 21 day provision is jurisdic-

tional;

(3) when the state failed to file its

application for leave to appeal in the

Michigan Supreme Court within the 21

days provided by the Rules, the judgment

of the Michigan Court of Appeals became

final;

(4) when the Michigan Supreme Court

considered and_ granted the state's

delayed application for leave to appeal

and vacated the judgment of the Michigan

Court of Appeals which had become final,

the Michigan Supreme Court in effect

laid the original charges against peti-

tioner a second time, in violation of

petitioner's right not to be placed twice in

jeopardy for the same act.

(1)

THE STATE HAD 21 DAYS IN WHICH TO

FILE ITS APPLICATION FOR LEAVE TO

APPEAL IN THE MICHIGAN SUPREME

COURT.

The Michigan Supreme Court's general review

power is grounded in Michigan Constitution 1963,

art 6, sec 4, which provides in part:

"The supreme court shall have general super-

intending control over all courts; power to

issue, hear and determine prerogative and

remedial writs; and appellate jurisdiction as

provided by rules of the supreme court.'

The judicial powers of the Michigan Supreme

Court have been further defined in Michigan

Compiled Laws [MCL] 600.212 - 600.223. Inter

alia, the Michigan Supreme Court is granted

appellate jurisdiction over any matter or ques-

tion of law brought before the Court in an

authorized manner, and the Court is granted the

power to promulgate and amend general court

rules governing the practices and procedures in

all courts of record. These rules may include

practices and procedures for the method of

review of decisions from inferior tribunals. See

generally People _v_ Coles, 417 Mich 523, 533

(1983).

The Michigan legislature duly adopted MCL

600.232 which provides:

"Appeals to the supreme court may be by

right or by leave as provided by the

rules of the supreme court, except as

otherwise provided by statute.'

The Michigan Supreme Court has promulgated

the following rule known as Michigan Court Rules

1985 [MCR], 7.301:

'(A) Jurisdiction. The Supreme Court

may:

'(2) review by appeal a case pending in

the Court of Appeals or after decision

by the Court of Appeals (see 7.302);'

Michigan Court Rule 1985, Rule 7.302 provides

as follows:

"APPLICATION FOR LEAVE TO APPEAL

‘(A) What To Pile.

To apply for leave to appeal, a party

must file:

'(1) 8 copies of an application for

leave to appeal (one must be signed)

consisting of the following:

‘(C) When to Pile.

"(2) Other Appeals. Except as provided

in subrule (C)(4), in other appeals the

application must be filed within 21 days

"(b) after the filing of the opinion

appealed from; or

mails notice of an order denying a

timely filed motion for rehearing.'

Thus, it is clear that’ the State had 21 days

in which to file its application for leave to

appeal in the Michigan Supreme Court.

(2)

THE 21 DAY LIMITATION FOR THE

FILING OF AN APPLICATION FOR

LEAVE TO APPEAL IS JURISDICTION-

AL.

This was made clear by the Michigan Supreme

Court repeatedly in cases in which the Court

ruled that an appeal not timely filed conferred

no appellate jurisdiction on the Court.

Petitioner begs this Court's pardon for

presenting the following extensive list of

cases, but petitioner feels it important to

establish that the Michigan Supreme Court by its

own rulings has repeatedly held that timeliness

of an appeal is jurisdictional.

In Potaschnik v Kaimola, 216 Mich 406, 407

(1921), the Court said:

"{I]m Munroe, Boyce & Co v Ward, 207 Mich.

34, we held that the provision requiring the

filing of claim of appeal within 20 days was

likewise mandatory, and that the court was

without jurisdiction to entertain the ap-

peal.'

In Bolton v Cummings, 200 Mich 234, 235

(1918), the Court said:

"A judgment for the defendant was entered in

this case June 21, 1916, in Kent circuit

court. August 9, 1917, the writ of error was

issued. No motion for an extension of time

was granted by this court, or by any of the

Justices thereof. The year in which a writ

of error might issue without such extension

had expired. No motion to dismiss the writ

has been filed, and appellee files a brief on

the merits. The right of appeal is statu-

tory; unless taken within the time fixed by

the statute the appellate court does not

acquire jurisdiction; jurisdiction is not

acquired by waiver or consent. [citations

omitted] This court should, of its own mo-

tion, dismiss a case which the record dis-

closes it has not the jurisdiction to hear

and determine. [citation omitted]. The writ

of error will be dismissed.' [emphasis added]

In Puffer v Clark, 202 Mich 169, 193 (1918),

the Court said:

"{I] consider whether it is true, as is

Claimed, that this court is without juris-

diction to hear and determine the appeals

because they were made too late. We have

held that parties - at least when not

prevented from appealing by the action or

non-action of officers of the court - must

perfect appeals within the time limited in

the statute, see Perkins v Perkins, 173 Mich.

690, and cases cited in the Opinion, and

that, failing to do this, the right to appeal

is lost and cannot be restored by the court.’

In Perkins v Perkins, 173 Mich 690, 695

(1913), the Court said:

‘We hold, in conformity with repeated

decisions of the court, that the statute

fixes a time within which appeals in chan-

cery must be perfected, and that a party

desiring to appeal must within that time

perfect his appeal; for failure to do which,

the right to appeal is lost and cannot be

restored by the court.'

In Township of Cooper v Little, 220 Mich 62,

63-64 (1922), the Court said:

‘This court in numerous cases has held that

the right to appeal is statutory, that the

mandatory provisions of the statute must be

complied with in order to give this court

jurisdiction of the case, that jurisdiction

may not be conferred by consent and that

this court will of its own motion decline

to consider cases upon the merits which it

had not jurisdiction to decide.'

In Bulton v Cummins, 200 Mich 234, 235

(1918), the Court said:

‘The right to appeal is statutory; unless

taken within the time fixed by the statute

the appellate court does not acquire juris

diction; jurisdiction is not acquired by

waiver or consent.'

In Munroe, Boyce & Co. v. Ward, 207 Mich 369,

378 (1919), the Court said:

‘The right of appeal is a statutory one,

and unless the mandatory provisions of the

statute are complied with the court has no

jurisdiction to entertain the appeal.'

In Hoffman v. Security Trust Co, 256 Mich

383, 385 (1931), the Court said:

‘An appeal is perfected when notice of

appeal is filed within the required time.

Michigan Court Rules Nos. 56 and 57. Both

the act and time of filing are jurisdic-

tional. Default in either destroys. the

right of appeal and leaves appellant reme

diless by way of appeal except upon special

leave of the appellate court. Michigan Court

Rule No. 57, #2.'

In Chicago, D & CGTJ R Co v Simons, 210 Mich

418, 420 (1920), the Court said:

"This court, in consonance with other

courts of last resort, has uniformly held

that appeals are statutory, do not exist at

common law, and that the legislature in its

discretion may prescribe in what cases and

under what circumstances appeals may be

taken. [citations omitted. ]' z

Cited with approval: Moore v Spangler, 401

Mich 360, 369 (1977).

Under Michigan law, every person convicted of

crime has an appeal as of right to the Michigan

Court of Appeals. Michigan Constitution, 1963,

Article 1, Section 20.

GCR_1985, 7.204(A) pertaining to appeals as

of right to the Michigan Court of Appeals

" provides that:

‘The time limit for an appeal of right is

jurisdictional.'

GCR 1985, 7.205(F) provides for the filing of

NSS ee Eee eee

an application for late appeal in the Michigan

Court of Appeals in cases where the defendant

has not timely filed an appeal as of right. Of

course, it is entirely discretionary with the

court as to whether the late appeal shall be

allowed.

It might be argued that the Court has the

power to excuse a short delay in the filing of

an application, but, as the Michigan Court

recognized in a similar context, if the Michigan

court can excuse a short delay, it can excuse a

delay of any length, and a criminal defendant

who has been released from custody under a final

judgment of the Michigan Court of Appeals would

never feel safe and secure that the Michigan

Supreme Court will not, at some point, re-

instate his conviction. In Perkins v Perkins,

173 Mich 690, 694 (1913), the Court said:

"It is apparent that, if the parties in such

a cause may by consent extend the statutory

period for appealing one day, they may extend

it indefinitely, and, if this right could be

admitted, appeals in chancery would not be

controlled by the authority without which

they could not be taken at all, but by the

convenience of counsel.'

Nor can it be said that somehow this peti-

tioner consented to the action of the Michigan

Supreme Court by some action of his or omission

to act, because, as the Michigan court said In

J F Hartz v Lukaszewski, 200 Mich 230, 232,233

(1918):

‘Jurisdiction cannot be conferred by consent

Or inadvertence’ and ‘That no right of appeal

exists in this State except as conferred by

Statute, is well settled.'

Further, the Michigan Supreme Court has held

that it cannot enlarge the state's right to

appeal as defined in statute. Thus, in In re

People v Burton, 429 Mich 133, 142 (1987), where

the trial court granted the defendant a new

trial on motion and the prosecution sought and

Ok Pe BET MO EE LI tie te VN SAP we tee

Oe ee

eo ee aa “a

obtained superintending control from the Michi-

gan Court of Appeals which then reversed the

trial court, the Court reversed the Court of

Appeals saying that MCL 770.12 did not provide

for an appeal by the people of a trial court's

decision to grant a new trial in a criminal case

and that ‘[iJssuing an order of superintending

control is an improper means of granting appel-

late review when an appeal is not provided for

by general law'. It would amount to a collateral

attack on the trial court's order where no

appeal was provided by law'. See also: United

States v Hundley, 858 F2d 58, 61 (CA2 1988).

(3)

WHEN THE STATE FAILED TO FILE ITS

APPLICATION FOR LEAVE TO APPEAL

IN THE MICHIGAN SUPREME COURT

WITHIN THE 21 DAYS PROVIDED BY

THE RULES, THE JUDGMENT OF THE

MICHIGAN COURT OF APPEALS BECAME

FINAL.

This is clear by implication from the deci-

sions of the Michigan Supreme Court which hold

that a timely application for leave to appeal to

the Michigan Supreme Court from a decision of

the Michigan Court of Appeals effectively stays

the operation of the decision of the Michigan

Court of Appeals.

Thus, in People v George, 399 Mich 638, 639

(1977) the Court said:

"The defendant was convicted of second-

degree murder .. . . Appeal by the defen-

dant was timely taken to the Court of

Appeals and on June 14, 1976 that Court

issued its opinion which concluded with the

words, "Reversed and remanded". [citation

omitted] On July 2, 1976 the plaintiff

filed an application for leave to appeal

with this Court. The application to this

Court was timely, having been filed within

20 days of the issuance of the Court of

Appeals opinion. See GCR 1963, 853.2(1).

That application to this court has been

neither denied nor granted and therefore

remains pending before this Court.

* 2 2

"If this Court denies the pending applica-

tion for leave to appeal, the Court of

Appeals judgment then becomes the final

adjudication of this case and may be en-

forced in accordance with its terms, under

GCR 1963, 853.2(2).'

And in People v Phillips, 416 Mich 63, 74

(1982) the Court said:

‘A timely application for leave to appeal

to this Court from a decision of the Court

of Appeals effectively stays the Court of

Appeals decision as a final adjudication,

see People v George, 399 Mich 638 (1977),

and denies it precedential force until

denial of the application for leave to

appeal in this Court or some other disposi-

tion of the case is announced.'

And in Moore v City of Detroit, 424 Mich 905,

906 (1986) the Court said:

‘The defendants-appellants filed a timely

application for leave to appeal after the

Court of Appeals order of January 13, 1986,

denying their timely application for re-

hearing. Pursuant to MCR 7.215(F)(1), the

trial court cannot execute the Court of

Appeals judgment until such time as the

Court of Appeals clerk, under MCR 7.210(I),

Or the Supreme Court clerk, under MCR

7.311(B), returns the record to the trial

court along with a certified copy of the

judgment of the Court of Appeals. Since

the clerk of the Court of Appeals is not

empowered to return the record to the trial

court until after the period for the filing

of a timely application for leave to appeal

has expired,MCR 7.210(1I)and the defendants-

appellants filed such a timely application,

then the record cannot be returned to the

trial court until final adjudication of the

matter by this Court, MCR 7.311(B).Cf.

People v George, 399 Mich 638 (1977) ;People

v Phillips, 416 Mich 63

(1982).'

It must follow that an application out of

time, that is, a delayed application for leave

to appeal, to the Michigan Supreme Court, does

not stay the operation of the decision of the

Michigan Court of Appeals as a final judgment.

If the filing of an out of time application

for leave to appeal does not stay.the operation

of the decision of the Michigan Court of Ap-

peals, it must mean that the decision of the

Michigan Court of Appeals is the final judgment

in the case.

The situation is the same as though the state

did not appeal from the judgment of the Michigan

Court of Appeals; and the same legal effects

would result, namely, that the decision of the

Michigan Court of Appeals would became the final

judgment in the case.

The principle involved is the same enunciated

in the following cases:

German American Seminary v Saenger, 66 Mich

249, 252 (1887):

"As Stroh did not appeal, of course the

decree stands as a judgment.'

Bassett v Trinity Bldg Co, 254 Mich 207, 210

(1931):

‘The case resulted in a judgment in favor

of Quail. .. . The latter thereupon made

a motion to set aside the judgment. ...

The motion was denied on March 29, 1930,

and no appeal taken. The judgment thus

became res ad‘judicata.'

(4)

WHEN THE MICHIGAN SUPREME COURT

GRANTED THE STATE'S DELAYED AP-

PLICATION FOR LEAVE TO APPEAL

AND VACATED THE JUDGMENT OF THE

MICHIGAN COURT OF APPEALS WHICH

HAD BECOME FINAL, THE MICHIGAN

SUPREME COURT IN EFFECT LAID THE

ORIGINAL CHARGES AGAINST PETI-

TIONER A SECOND TIME, IN VIOLA-

TION OF PETITIONER'S RIGHT NOT TO

BE PLACED TWICE IN JEOPARDY FOR

THE SAME ACT.

See Fifth Amendment, United States Constitu-

tion. Benton v Maryland, 395 US 784 (1969).

shall»

The following Michigan statute, MCL 770.12,

grants the state the right to appeal in certain

Criminal cases:

‘(1) The people of this state may take an

appeal of right in a criminal case, if the

protection against double jeopardy under

section 15 of article I of the state con-

Stitution of 1963 and amendment V of the

constitution of the United States would not

bar further proceedings against the defen-

dant, from either of the following:

‘(a) A final judgment or final order of the

circuit court or recorder's court, except a

judgment or order of the circuit court or

recorder's court on appeal from any other

court.

"(b) A final judgment or order of a court or

tribunal from which appeal of right has been

established by law.'

-It is clear that the Michigan legislature

recognized that a prosecutor's appeal must never

violate a criminal defendant's double jeopardy

rights.

And it is certain that the Michigan Supreme

Court cannot grant any relief to the state which

infringes upon or violates a criminal defen-

dant's Fifth Amendment right not to be placed

twice in jeopardy for the same act.

What the Michigan Supreme Court did in its

Order of March 5, 1992 was not only to re-

instate charges against petitioner which the

Michigan court of Appeals in its final judgment

ordered dismissed, but also to remand the case

to the trial court for additional adducement of

evidence. This constituted the subjecting of

petitioner to a second trial. .

This Court made that much clear in United

States v Martin Linen Supply Co, 430 US 564, 569

(1977):

'Thus Wilson held that the “controlling

constitutional principle" focuses on prohibi-

tions against multiple trials. At the heart

of this policy is the concern that permitting

the sovereign freely to subject the citizen

to s second trial for the same offense would

arm Government with a potent instrument of

oppression.'

An appeal by the government from the grant

by the trial court of a motion for acquittal

after a jury verdict of guilty, is permitted

because if the government is successful there is

no new trial, but merely a re-instatement of the

jury verdict. United States Vv Jenkins, 420 US

358 (1975).

It is undoubtedly true that each state may

establish the right to appeal in certain cases

Or not, according to the lights of the legisla-

ture, and each state may lay down rules for the

exercise of the right to appeal. But in doing

so, the state cannot infringe upon the rights

which an individual litigant has under the

United States Constitution. Undoubtedly, the

Michigan Supreme Court may, in its discretion

and in its exercise of its sense of equity,

QOrant parties leave to appeal on delayed ap-

plications for leave to appeal. But, the Michi

gan Supreme Court was not and is not at liberty

in this case to violate petitioner's right under

the federal constitution not to be twice put in

jeopardy for the same act.

This was made clear by this Court in Missouri

v_ Lewis [Bowman v Lewis], 101 US 22,30, 25 L Ed

989, 992 (1879):

‘It is the right of every State to establish

such courts as it sees fit, and to prescribe

their several jurisdictions as to territorial

IR RET 6 Os Rett SO RE EER OR OE

extent, subject-matter and amount, and the

finality and effect of their decisions;

provided it does not encroach upon the proper

jurisdiction of the United States, and does

not abridge the privileges and immunities of

citizens of the United States; and does not

Detroit, Michigan

June 10, 1992

deprive any person of his rights without due

process of law, nor deny to any person the

equal protection of the laws, including the

equal right to resort to the appropriate

courts for redress.' [emphasis added]

CONCLUSION

Petitioner prays this Court issue a Writ of

Certiorari to the Michigan Supreme Court.

Respectfully submitted,

Carl Ziemba

Attorney for Petitioner

Attorney of Record

703 W Hancock

Detroit, Michigan 48201

(313) 833 5145

APPENDIX

ORDER OF MICHIGAN SUPREME

COURT VACATING COURT OF

APPEALS JUDGMENT

Michigan Supreme Court

Lansing, Michigan

Michael F. Cavanagh

Chief Justice

Charles L Levin

James H Brickley

Patricia J Boyle

Dorothy Comstock Riley

Robert P Griffin

Conrad L Mallett, Jr.

Associate Justices

ORDER

Entered: March 5, 1992

92590

92590 (4)

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellant,

Cross-Appellee,

SC: 92590

Vv COA: 113526

LC: 88-50061

MARK KONRAD,

Defendant-Appellee,

Cross-Appellant

On order of the Court, the delayed applica-

tion for leave to appeal is considered and,

pursuant to MCR 7.302(F)(1), in lieu of granting

leave to appeal, we VACATE the judgment of the

Court of Appeals. We REMAND the case to the

Court of Appeals which shall, while retaining

jurisdiction, remand the matter to the Recor-

der's Court for the City of Detroit for a

ee eee re

hearing and findings to include, without limita-

tion, whether the defendant ever made a request

for a final disposition of his case and, if so,

the date of such request.

In light of this order, the defendant's

conditional application for leave to appeal as

cross-appellant with respect to issues not

considered by the Court of Appeals is DENIED as

moot.

We do not retain jurisdiction.

Boyle, J., states as follows:

I join in the order of remand to the Recor-

der's Court for the city of Detroit for a

hearing but would specify on remand that the

Recorder's Court is to make findings that

include, without limitation, whether the defen-

dant ever made a request for a final disposition

of his case and, if so, the date of such re

quest. In addition, the Court of Appeals, on

receipt of such findings and other findings

deemed pertinent by the Recorder's Court, should

reconsider the defendant's appeal. if the

Recorder's Court finds that the defendant made

such a request at a time less than 180 days

(subtracting delay attributable to the defen

Gant) before the November 1, 1988, trial, then

the Court of Appeals on reconsideration may not

find a violation of the 180-day provision of

Article III of the Interstate Agreement on

Detainers, MCL 780.601; MSA 4.147(1), by a

calculation method that adds any time prior to

the defendant's request for a final disposition

of his case to the time between the defendant's

request for final disposition of his case and

the trial. Article III(a) provides in pertinent

part that the defendant "shall be brought to

trial within one hundred eighty days after he

shall have caused to be delivered to the prose-

cuting officer and the appropriate court of the

prosecuting officers' jurisdiction written

notice of the place of his imprisonment and his

request for a final disposition to be made of

the indictment, information or complaint...

." (Emphasis added. )

70220

I, CORBIN R DAVIS, Clerk of the Michigan Supreme

Court certify that the foregoing is a true and

complete copy of the order entered at the

Girection of Court.

March 5, 1992 /s/ Corbin R. Davis

Clerk

ORDER OF MICHIGAN SUPREME COURT

DENYING RECONSIDERATION

Michigan Supreme Court

Lansing, Michigan

Michael F. Cavanagh

Chief Justice

Charies L Levin

James H Brickley

Patricia J Boyle

Dorothy Comstock Riley

Robert P Griffin

Conrad L Mallett, Jr.

Associate Justices

ORDER

Entered: May 29, 1992

92590 (48)

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellant,

SC: 92590

V COA: 113526

LC: 88-50061

MARK KONRAD,

Defendant-Appellee,

On order of the Court, the motion for recon-

Sideration of this court's order of March 5,

1992 is considered, and it is DENIED, because it

does not appear that the order was entered

erroneously.

I, CORBIN R DAVIS, Clerk of the Michigan Supreme

Court certify that the foregoing is a true and

complete copy of the order entered at the

direction of Court.

May 29, 1992 /s/ Corbin R. Davis

Clerk

ORDER OF TRIAL COURT DISMISSING CHARGES

STATE OF MICHIGAN

IN THE RECORDER'S COURT FOR THE CITY OF DETROIT

THE PEOPLE OF THE STATE OF MICHIGAN

Plaintiff,

vs CASE NO. 88-500061

Defendant,

MARK KONRAD

ORDER

At a session of said Court held in the

City of Detroit, Frank Murphy Hall of

Justice, County of Wayne, State of

Michigan on June 25, 1991.

PRESENT: Hon. Vera Massey Jones

HONORABLE VERA MASSEY JONES

Recorder's Court Judge

The Court of Appeals having vacated the

Defendant's Convictions and sentences.

IT IS HEREBY ORDERED that the charges

are dismissed.

PRESENT: /S/ Vera Massey Jones

Recorder's Court

Judge

City of Detroit

Third Judicial

Circuit Court

of Michigan

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.