
    PEOPLE v KNEZ
    Docket No. 99088.
    Submitted April 19, 1988, at Lansing.
    Decided December 5, 1988.
    Leave to appeal applied for.
    Bryan Knez was charged in district court with operating a motor vehicle while under the influence of intoxicating liquor. The district court judge dismissed the complaint as having been improperly executed. The people filed a motion for reconsideration, which was granted. On reconsideration, the district court judge reversed the prior dismissal and reinstated the charge against defendant. Defendant appealed to the Oakland Circuit Court, which ruled that the complaint was invalid and reinstated the district court’s dismissal of the charge. The court, John N. O’Brien, J., concluded that jeopardy had not attached in the prior proceeding and that the people could reinstate the charge against defendant. The people appealed to the Court of Appeals by leave granted. The Court of Appeals in an unpublished opinion per curiam, after preliminarily determining that the complaint was valid and that, because the first witness was sworn before dismissal of the charge, jeopardy had attached, held that the Court of Appeals was without jurisdiction to address the propriety of dismissing the charge against defendant. As an aside though, the Court stated that even though jeopardy attached to defendant, retrial was not barred by the prohibition against double jeopardy because the charge against defendant was dismissed on a basis unrelated to his factual guilt or innocence on the charge. Defendant moved for rehearing, which was granted.
    On rehearing, the Court of Appeals held:
    
    Where a defendant deliberately chooses to seek termination of proceedings against him on a legal technicality unrelated to his factual guilt or innocence, the double jeopardy clause does not bar his retrial.
    Affirmed.
    Criminal Law — Double Jeopardy — Dismissal of Charges — Legal Technicalities.
    The double jeopardy clause does not bar retrial of a defendant who deliberately chooses to seek termination of proceedings against him on a legal technicality unrelated to his factual guilt or innocence.
    
      References
    Am Jur 2d, Criminal Law §§ 258 et seq., 309 et seq.
    
    WHen does jeopardy attach in nonjury trial. 49 ALR3d 1039.
    
      
      Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, L. Brooks Patterson, Prosecuting Attorney, Robert C. Williams, Chief, Appellate Division, and Margaret G. Horenstein, Assistant Prosecuting Attorney, for the people.
    Bryan Knez, in propria persona, and Charles H. Tatham, of Counsel, for defendant.
    Before: Kelly, P.J., and Sullivan and M. J. Shamo, JJ.
    
      
       Recorder’s Court judge, sitting on the Court of Appeals by assignment.
    
   Kelly, P.J.

We granted rehearing to address defendant’s challenge of our finding that his retrial is not barred by the prohibition against double jeopardy. People v Knez, unpublished opinion per curiam of the Court of Appeals, decided July 8, 1988. (Docket No. 99088). Defendant argues that this finding was in direct conflict with this Court’s holding in People v Brower, 164 Mich App 242; 416 NW2d 397 (1987), lv den 430 Mich 864 (1988). We disagree and reaffirm our original holding.

Where a defendant deliberately chooses to seek termination of proceedings against him on a legal technicality unrelated to his factual guilt or innocence, the double jeopardy clause does not bar his retrial. United States v Scott, 437 US 82, 98-99; 98 S Ct 2187; 57 L Ed 2d 65 (1978), reh den 439 US 883 (1978); Illinois v Somerville, 410 US 458; 93 S Ct 1066; 35 L Ed 2d 425 (1973); People v Greer, 91 Mich App 18, 25-26; 282 NW2d 819 (1979).

In Brower, supra, the district court dismissed the charges against the defendant because the prosecutor failed to produce any witnesses against the defendant, and the defendant refused to testify after being sworn in as a witness. The Brower dismissal was due to the prosecutor’s failure to adduce proofs, not because of a technical defect in the complaint. The Brower dismissal amounted to a directed verdict or an acquittal for the defendant, which was related to his factual guilt or innocence, therefore retrial was barred by double jeopardy. Defendant’s assertion that the dismissal in Brower was unrelated to Brower’s guilt or innocence is simply incorrect.

Our holding in Brower is easily distinguishable from the instant case. Here the case against defendant was dismissed due to a supposedly faulty complaint, a legal technicality unrelated to defendant’s factual guilt or innocence. Since defendant elected to seek termination of his trial on grounds unrelated to his factual guilt or innocence, double jeopardy does not bar his retrial. Scott, supra at 96, 98-99; Greer, supra at 25-26.

Affirmed. 
      
       The summary of factual background from the unpublished per curiam opinion follows:
      [Djefendant was charged in a uniform citation with operating a motor vehicle under the influence of intoxicating liquor, contrary to MCL 257.625; MSA 9.2325. After delays, the matter proceeded to a bench trial before the 52-3 District Court on May 13, 1986.
      When the first witness had been sworn and commenced testimony by giving and spelling his name, defendant moved for dismissed on the grounds that the complaint was fatally defective because it was not sworn before a person authorized to take an oath and because it did not contain language that the statements made by the complaining witness must be under oath and under the penalty of perjury.
      After hearing testimony from the person before whom the complaint was signed and sworn and her supervisor, the court administrator who acted as the court clerk, the district judge dismissed the complaint as improperly executed.
     