
    PEOPLE v. ASHER
    1. Trial — Criminal Law — Absentee Dependant — -Legal Detention —Presence at Trial.
    One who is being involuntarily though legally detained in a state penal institution does not have a duty to present himself for trial on criminal charges pending against him.
    2. Trial — Criminal Law — Absentee Dependant — Legal Detention —Notice—Presence at Trial — Prosecution Duty.
    A prosecutor, when he has notice of an accused’s detention in a state penal institution, has the duty of seeing that sueli accused is present at all essential stages of trial.
    3. Trial — Criminal Law — Absentee Dependant — Legal Detention —Presence at Trial — Adjournment—180-Day Rule — Waiver.
    Trial adjournment necessitated by defendant’s absence did not constitute a waiver by defendant of rights created by the statute regarding disposition of untried charges within 180 days where defendant was being legally detained in a state institution, and the prosecutor, knowing of that detention, failed to produce defendant for trial (MCLA §§ 780.131, 780.133).
    
      References por Points in Headnotes
    
       21 Am Jur 2d, Criminal Law §§ 285-287, 302, 305.
    
       21 Am Jur 2d, Criminal Law §§ 271-278, 288.
    
       21 Am Jur 2d, Criminal Law §§'249, 250', 254. i
    
    
       21 Am Jur 2d, Criminal Law §§ 251, 252, 255.
    
      4. Appeal and Error — Record—Insufficient Information — Factual Dispute — Remand.
    Insufficient record information to resolve a factual dispute as to whether defense counsel requested adjournments which extended defendant’s trial beyond the 180-day rule for disposition of untried criminal charges, required remand to the trial court to establish a testimonial reeord detailing the reasons, if any, for each of the delays, a determination as to which party initiated each delay, and a redetermination as to whether the 180-day rule had been violated.
    Appeal from Recorder’s Court of Detroit, Robert E. DeMascio, J.
    Submitted Division 1 January 5, 1970, at Detroit.
    (Docket No. 5,673.)
    Decided February 5, 1970.
    Donald Asker was convicted by a jury of possession of marihuana. Defendant appeals.
    Remanded witk instructions.
    
      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Samuel J. Torina, Chief Appellate Lawyer, and Arthur N. Bishop, Assistant Prosecuting Attorney, for tke people.
    
      Daniel H. French and George L. BeGole (Norman L. Zemke, of counsel), for defendant.
    Before: Lesinski, C. J., and J. H. Gillis and Quinn, JJ.
   Lesinski, C. J.

Defendant Donald Asker was convicted following a jury trial for possession of marihuana, MOLA § 335.153 (Stat Ann 1957 Rev § 18.1123). This appeal is brought as of right.

It is defendant’s position that reversal is required due to application of the “180-day” rule statute, MCLA §§ 780.131, 780.133 (Stat Ann 1969 Cum Supp §§ 28.969[1], 28.969[3]).

In the instant case there were a total of seven adjournments and • postponements which delayed the commencement of trial for a full year following the preliminary examination. Arraignment on the information was not held for nearly six months after its first scheduled date. Four adjournments occurred following expiration of the statutory period.

Of the reasons presented in the record for the delays, two require attention. First, the record reveals that several of the delays were caused by the failure of defendant to be present. At all relevant times defendant was in the custody of the Department of Corrections at Jackson prison, and the prosecutor had notice of this fact. It was the position of the trial court, in denying defendant’s motion, that defendant had the duty to present himself for trial and failure to do so could not be attributable to the prosecutor. We disagree.

Where, as here, defendant is being involuntarily (though legally) detained by the state, it becomes the duty of the people to have defendant present at all essential stages of trial. When the prosecutor fails to produce defendant, thus necessitating adjournment, such does not constitute a waiver by defendant of tbe statutory rights created by tbe “180-day” rule.

Tbe second reason given for tbe delays is that they resulted from requests of defense counsel. In People v. Hendershot (1959), 357 Mich 300, 304, tbe Court stated;

“When tbe people bave moved tbe case to tbe point of readiness for trial and stand ready for trial witbin tbe 180-day period, defendant’s delaying motions, carrying tbe matter beyond that period before tbe trial can occur, may not lie said to bave brought the statute into operation, barring trial thereafter.”

Defendant, however, denies that any of tbe adjournments were at bis request.

We are, thus, presented with a factual dispute, fundamental to the disposition of tbe case. Tbe record does not provide sufficient information to resolve the matter.

We, therefore, remand for the purpose of establishing a testimonial record detailing the reasons, if any, for each of the delays in the proceedings of the instant case, and a determination as to which party initiated each delay. Upon completion of the testimonial record, the trial court shall make a redetermination of its prior ruling of defendant’s motion in the light of this opinion and the testimonial record.

In the event the “180-day” rule is found not to have been violated, the trial court shall return the record on appeal and the record established on remand to this Court for final determination of the remaining issues raised on appeal.

Remanded for actions not inconsistent with this opinion.

All concurred. 
      
       The delays referred to hereinafter do not include the adjournment of August 2, 1967, necessitated by the civil disorder in Detroit. That delay was clearly beyond the control of the prosecutor. Brief adjournments under such circumstances are consistent with good-faith diligence.
     
      
       Absence from trial due to imprisonment is not voluntary within the meaning of People v. Gant (1961), 363 Mich 407, which held that voluntary absence can waive defendant’s right to be present at his trial.
     
      
       The following statements by the prosecutor appear on the record below:
      
        “Mr. Weiswasser: If your Honor please, there are certain factual matters that do not appear on the record. I have discussed this matter with the officer in charge of the ease, Mr. Kapagian, and he tells me that several times during the pendency of this particular case counsel indicated that they would like to have this matter adjourned pending the outcome of the disposition of the matters against the eodefendant, and that the police and the people were ready to proceed at any time. * * *
      
        “Mr. Weiswasser: Yes, During all this time there were several adjournments of the examination, all at the request of defense counsel. And I can only go by what the officer tells me. He tells me that defense counsel indicated to them that they wanted to wait until there was a complete disposition on this matter involving the other codefendants; and that the only time that this motion came to being filed was when the parole board took the aetion of incarcerating the defendant for violation of parole. * * *
      
        “Mr. Weiswasser: I know. But preliminary to this — I don’t know what 180 days he is talking about. He can’t be talking about 180 days preceding the August period, because you have had all kinds of dates set for examination which were adjourned at the request of counsel.”
     
      
       Defendant denied requesting adjournments stating during argument below: “They were not adjourned at request of counsel.”
      Later, when asked by the court whether he would have been prepared to try the ease on August 2, 1967, defendant’s attorney stated: “I was ready for trial. Had it not been for the riot I would have been ready for trial on that date,”
     
      
       See People v. Thomas (1970), 21 Mich App 465, an appeal following a similar remand.
     