HOUSE BILL No. 5271


     October 14, 1997, Introduced by Reps. Callahan and Richner and referred to the Committee on Judiciary.


        A bill to amend 1927 PA 175, entitled

   "The code of criminal procedure,"

   by amending sections 2 and 3 of chapter X and sections 34, 43,

   and 44 of chapter XIV (MCL 770.2, 770.3, 774.34, 774.43, and

   774.44), section 2 of chapter X as amended by 1981 PA 205, sec-

   tion 3 of chapter X as amended by 1994 PA 374, and sections 34,

   43, and 44 of chapter XIV as amended by 1980 PA 506.

               THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 1                                CHAPTER X

 2         Sec. 2.  (1) In a case appealable as of right to the court

 3    of appeals, a motion for a new trial shall be made within 60 days

 4    after entry of the judgment or within any further time allowed by

 5    the trial court during the 60-day period.

 6         (2) In a misdemeanor or ordinance violation case appealable

 7    as of right from A MUNICIPAL COURT IN A CITY THAT ADOPTS A


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 1    RESOLUTION OF APPROVAL UNDER SECTION 23A OF THE MICHIGAN

 2    MUNICIPAL COURT ACT, 1956 PA 5, MCL 730.523, OR FROM a court of

 3    record to the circuit court or to the recorder's court of the

 4    city of Detroit, a motion for a new trial shall be made within 20

 5    days after entry of the judgment.

 6         (3) In a misdemeanor or ordinance violation case appealable

 7    de novo to the circuit court, a motion for a new trial shall be

 8    made within 20 days after entry of the judgment.

 9         (4) If the applicable period of time prescribed in subsec-

10    tion (1) or (2) has expired, a court of record may grant a motion

11    for a new trial for good cause shown.  If the applicable time

12    period prescribed in subsection (3) has expired and the defendant

13    has not appealed, a municipal court may grant a motion for new

14    trial for good cause shown.

15         Sec. 3.  (1) Subject to the limitations imposed by section

16    12 of this chapter, an aggrieved party shall have a right of

17    appeal from a final judgment or trial order as follows:

18         (a) Except as otherwise provided in subdivision (e), in a

19    felony or misdemeanor case tried in the circuit court or

20    recorder's court of the city of Detroit, there shall be a right

21    of appeal to the court of appeals.

22         (b) Except as otherwise provided in subdivision (e), in a

23    misdemeanor or ordinance violation case tried in A MUNICIPAL

24    COURT IN A CITY THAT ADOPTS A RESOLUTION OF APPROVAL UNDER SEC-

25    TION 23A OF THE MICHIGAN MUNICIPAL COURT ACT, 1956 PA 5, MCL

26    730.523, OR TRIED IN the district court in districts other than

27    the thirty-sixth district, there shall be a right of appeal to



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 1    the circuit court in the county in which the misdemeanor or

 2    ordinance violation was committed.

 3         (c) Except as otherwise provided in subdivision (e), in a

 4    misdemeanor or ordinance violation case tried in the district

 5    court in the thirty-sixth district, or in a felony case over

 6    which the district court in the thirty-sixth district has juris-

 7    diction before trial, there shall be a right of appeal to the

 8    recorder's court of the city of Detroit.

 9         (d) In a misdemeanor or ordinance violation case tried in a

10    municipal court IN A CITY THAT DOES NOT ADOPT A RESOLUTION OF

11    APPROVAL UNDER SECTION 23A OF THE MICHIGAN MUNICIPAL COURT ACT,

12    1956 PA 5, MCL 730.523, there shall be a right of appeal as pro-

13    vided in chapter XIV.

14         (e) All appeals from final orders and judgments based upon

15    pleas of guilty or nolo contendere shall be by application for

16    leave to appeal.

17         (2) An appeal from an interlocutory judgment or order in a

18    felony, misdemeanor, or ordinance violation may be taken, in the

19    manner provided by court rules, by application for leave to

20    appeal to the same court of which a final judgment in that case

21    would be appealable as a matter of right under subsection (1).

22         (3) After expiration of the period prescribed for timely

23    appeal, the appellate court may grant leave to appeal from any

24    order or judgment from which timely appeal would have been avail-

25    able as of right, or by leave, upon conditions prescribed by

26    court rules.





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 1         (4) Further appellate review of matters appealed to the

 2    circuit court under subsection (1)(b), (1)(d), or (2) may be had

 3    only upon application for leave to appeal granted by the court of

 4    appeals.

 5         (5) Further appellate review of matters appealed to the

 6    recorder's court under subsection (1)(c) may be had only upon

 7    application for leave to appeal granted by the court of appeals.

 8         (6) Further review of any matter appealed to the court of

 9    appeals under this section may be had only upon application for

10    leave to appeal granted by the supreme court.

11         (7) An appeal as of right and an appeal by application for

12    leave to appeal provided for in this section shall be taken pur-

13    suant to and within the time prescribed by court rules.

14                               CHAPTER XIV

15         Sec. 34.  (1) A defendant who is convicted of a misdemeanor

16    or ordinance violation in a municipal court IN A CITY THAT DOES

17    NOT ADOPT A RESOLUTION OF APPROVAL UNDER SECTION 23A OF THE

18    MICHIGAN MUNICIPAL COURT ACT, 1956 PA 5, MCL 730.523, may appeal

19    to the circuit court for a trial de novo even if the sentence has

20    been suspended or the fine or costs, or both, have been paid.

21         (2) To appeal by right, the defendant shall file a claim of

22    appeal with the circuit court clerk within 20 days after the

23    entry of judgment.  A copy of the claim of appeal shall be filed

24    with the municipal court.  All applicable fees required by sec-

25    tions 2529 and 6536 of  Act No. 236 of the Public Acts of 1961,

26     as amended, being sections 600.2529 and 600.6536 of the Michigan

27     Compiled Laws  THE REVISED JUDICATURE ACT OF 1961, 1961 PA 236,



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 1    MCL 600.2529 AND 600.6536, shall be paid when filing the claim of

 2    appeal.  The defendant shall also enter into a recognizance to

 3    the people of the state in a sum not less than $50.00 nor more

 4    than $500.00 within 20 days after the entry of the judgment, con-

 5    ditioned upon the defendant prosecuting the appeal to effect and

 6    abiding by the orders and judgment of the court.  If the

 7    defendant enters into a recognizance, the municipal judge from

 8    whose judgment the appeal is taken shall discharge the defendant

 9    or order the defendant's discharge, shall make a special return

10    of the proceedings held before the judge, and shall file the com-

11    plaint, warrant, and the return together with the recognizance

12    with the circuit court.

13         (3) The practice and procedure for appeals from a municipal

14    court shall be as provided by supreme court rule.

15         Sec. 43.  If the defendant who appeals a conviction in

16    municipal court IN A CITY THAT DOES NOT ADOPT A RESOLUTION OF

17    APPROVAL UNDER SECTION 23A OF THE MICHIGAN MUNICIPAL COURT ACT,

18    1956 PA 5, MCL 730.523, is found not guilty on appeal in circuit

19    court, the circuit court shall discharge the defendant.  If the

20    defendant is convicted on appeal to circuit court, the circuit

21    court has the authority to enter judgment, sentence, and impose

22    costs as provided in section 22 of this chapter.  If the

23    defendant was released on recognizance as provided in section 34

24    or  43  42 of this chapter and is sentenced to jail by the cir-

25    cuit court, the defendant shall be remanded back to the county

26    jail for the length of time determined by the circuit court, less

27    any time served under the sentence imposed by the municipal court



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 1    and less any time spent in jail awaiting trial.  The defendant

 2    shall also be given credit for any fine paid under the sentence

 3    of the municipal court against any fine imposed by the circuit

 4    court on appeal.

 5         Sec. 44.  If a defendant takes an appeal from a municipal

 6    court IN A CITY THAT DOES NOT ADOPT A RESOLUTION OF APPROVAL

 7    UNDER SECTION 23A OF THE MICHIGAN MUNICIPAL COURT ACT, 1956 PA 5,

 8    MCL 730.523, and withdraws the appeal, or if the circuit court

 9    dismisses the appeal leaving the municipal court conviction in

10    effect, the circuit court may enter an order revoking a recogni-

11    zance and may also direct that the sentence of the municipal

12    court be carried out.

13         Enacting section 1.  This amendatory act does not take

14    effect unless Senate Bill No. _____ or House Bill No. _____

15    (request no. 01002'97 ***) of the 89th Legislature is enacted

16    into law.

























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