
    PEOPLE v. PARKER
    X. Criminal Law — Penal Inmates — Untried Charges — Notice—■ Trial — 180 Days — Statutes.
    Any inmate of a penal institution against whom there is pending an untried warrant, indictment, information, or complaint setting forth a criminal offense for which imprisonment could result on conviction, shall be brought to trial within 180 days after the Department of Corrections has delivered to the prosecuting attorney of the appropriate county a written notice of an inmate’s plaee of imprisonment and a request for the final disposition of those untried charges (MCLA § 780.131).
    2. Criminal Law — Penal Inmates — Untried Charges — Trial—180 Days — Statutes-—Purposes.
    The statute relating to disposition of untried warrants, indictments, informations or complaints pending against any penal inmate seeks to secure to those inmates the enjoyment of that legal rule which, in the absence of a statute otherwise providing, prohibits imposition of a sentence to commenee upon expiration of another sentence and insures to an inmate a speedy trial under conditions where he is unable to maintain personal contact with his witnesses (MCLA § 780.131).
    3. Criminal Law — Penal Inmates — -Untried Charges — Trial—180 Days — -Prosecutor—Good Eaith.
    Continued good-faith action is required of a prosecutor to keep alive criminal charges pending against a penal inmate, and if a prosecutor takes some preliminary action against an inmate, which is followed by an inexcusable delay beyond that statutory 180-day trial period and an evident intent not to bring an inmate to trial, a eourt, if it finds that good faith is lacking, must dismiss that case (MCLA §§ 780.131, 780-.133).
    
      References for Points in Headnotes
    [1-9] 21 Am Jur 2d, Criminal Law § 249 et seq. 41 Am Jur 2d, Indictments and Informations § 13.
    [6] 21 Am Jur 2d, Criminal Law §§ 378, 379,
    
      4. Criminal Law — Penal Inmates- — Untried Charges — Statutes —Good-Faith Action.
    Statute providing for disposition of untried criminal charges pending against penal inmates does not require that trial action be commenced so early within the statutory 180-day period as to insure trial or completion of trial within that time but requires instead that apparent good-faith action be taken wrell within that 180-day period and that the people proceed promptly thereafter toward readying the ease for trial (MCLA § 780.131).
    5. Criminal Law — Penal Inmates — Untried Charges — Trial—180 Days — Statutes—Dismissal.
    A eourt must dismiss with prejudice any action against a penal inmate on pending untried charges where a prosecutor has failed to commence action on those charges within 180 days after the Department of Corrections has notified him of the inmate’s place of imprisonment and has requested final disposition of the untried charges (MCLA §§ 780.131, 780.133).
    6. Courts — Jurisdiction—Statutes.
    Jurisdiction of subject matter cannot be conferred upon a eourt by the parties’ consent or waiver where by statute a court has no jurisdiction.
    7. Criminal Law — Penal Inmates — Untried Charges — -Plea op Guilty — Courts—Jurisdiction—Statutes.
    Defendant prison inmate’s plea of guilty of attempted larceny in a building and his failure to object to the almost year delay in bringing Ms case to trial did not confer jurisdiction of the subject matter upon the trial eourt where jurisdiction was preeluded by statute when the people failed to commence action against defendant within the prescribed 180-day period (MCLA §§ 750.92(3), 750.360, 780.131, 780.133).
    8. Criminal Law — Penal Inmates- — Untried Charges — Prosecutor — Notice—Department op Corrections.
    A prosecutor in a ease which originated in his county has a duty to keep his records up to date and to notify the Department of Corrections of untried charges against an inmate if that prosecutor desires to receive information from that department regarding an inmate sinee the Department of Corrections cannot be expeeted to give a prosecutor such information without knowing he desired it (MCLA § 780.133).
    9. Criminal Law — Penal Inmates — Untried Charges — Prosecutor — Duty—Notice—Department oe Corrections.
    The statute relating to disposition of untried warrants, indictments, informations, or complaints against prisoners implicitly places a duty upon a prosecutor to notify the Department of Corrections within a reasonable time that untried charges are outstanding against an inmate and also places a duty upon that department to respond; consequently, a breach of these duties cannot be later raised to bar application of that statute, thereby frustrating the intent of the legislature (MCLA § 780.133).
    Appeal from Wayne, John M. Wise, J. Submitted Division 1 January 8, 1970, at Detroit.
    (Docket No. 6,155.)
    Decided February 3, 1970.
    Charles Parker was convicted, on his plea of guilty, of attempted larceny in a building. Defendant appeals.
    Reversed.
    
      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Gahalan, Prosecuting Attorney, Samuel J. Torina, Chief Appellate Lawyer, and Arthur N. Bishop, Assistant Prosecuting Attorney, for the people.
    
      Max E. Klayman, for defendant on appeal.
    Before; Lesinski, C. J., and J. H. Gillis and Quinn, JJ.
   Lesinski, C. J.

Defendant Charles Parker was found guilty of attempted larceny in a building following acceptance of his plea of guilty. Defendant brings this appeal.

On March 10, 1966, an adding machine was stolen from a store in Livonia. Two days later a complaint was issued against defendant and another man. On June 14, 1966, defendant wras arraigned and a plea of not guilty was entered upon his standing mute.

Defendant was released on bond. While out on bond defendant was arrested for another crime, tried, convicted and sentenced to a term of two to five years. On March 31, 1967, he entered Jackson prison to serve that sentence.

On March 13, 1968, the prosecutor petitioned for, and was granted, a writ of habeas corpus to have defendant released from Jackson to stand trial for the theft of the adding machine. Defendant pleaded guilty to the lesser included offense of attempted larceny in a building on April 19, 1968.

The sole issue raised on this appeal is the applicability of the “180-day” rule contained in MOLA § 780.131 (Stat Ann 1969 Cum Supp § 28.969[1]). The first section of the statute reads:

“Whenever the department of corrections shall receive notice that there is pending in this state any untried warrant, indictment, information or complaint setting forth against any inmate of a penal institution of this state a criminal offense for which a prison sentence might be imposed upon conviction, such inmate shall be brought to trial within 180 days after the department of corrections shall cause to be delivered to the prosecuting attorney of the county in which such warrant, indictment, information or complaint is pending written notice of the place of imprisonment of such inmate and a request for final disposition of such warrant, indictment, information or complaint. The request shall be accompanied by a statement setting forth the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time earned, the time of parole eligibility of the prisoner and any decisions of the parole hoard relating to the prisoner. The written notice and statement provided herein shall be delivered by certified mail.”

The policy behind this statute has been set forth in prior cases. In People v. Williams (1968), 9 Mich App 676, 682, this Court stated:

“The statute seeks to secure to those serving sentences in a state prison the enjoyment of the rule of law which, in the absence of a statute otherwise providing, prohibits imposition of a sentence to commence upon completion or expiration of another sentence. In re Carey (1964), 372 Mich 378, 380.”

See, also, People v. Loney (1968), 12 Mich App 288. The statute also has the effect of insuring a speedy trial under conditions where defendant is unable to maintain personal contact with his witnesses.

The key element required of the prosecutor under the statute to keep the case alive is continued good-faith action. As stated in People v. Hendershot (1959), 357 Mich 300, 303, 304:

“Clearly, if no action is taken and no trial occurs within 180 days, the statute applies. If some preliminary step or action is taken, followed by inexcusable delay beyond the 180-day period and an evident intent not to bring the case to trial promptly, the statute opens the door to a finding by the court that good-faith action was not commenced as contemplated by § 3, thus requiring dismissal. The statute does not require the action to be commenced so early within the 180-day period as to insure trial or completion of trial within that period. If, as here, apparent good-faith action is taken well within the period and the people proceed promptly and with dispatch thereafter toward readying the case for trial, the condition of the statute for the court’s retention of jurisdiction is met.”

See, also, People v. Castelli (1963), 370 Mich 147.

In the instant case it is clear that the 180-day rule was not met. No action whatsoever was taken by the prosecutor following defendant’s imprisonment on the second charge on March 31, 1967, until March 13, 1968. The prosecutor offers this Court no excuse for the delay of nearly a year.

The prosecutor, however, does argue that the issue has been waived both by defendant’s failure to raise the issue below and by his pleading to the information. We disagree.

The third section of the “180-day” rule statute (MCLA § 780.133 [Stat Ann 1969 Cum Supp § 28.969 (3)]) reads:

“In the event that, within the time limitation set forth in section 1 of this act, action is not commenced on the matter for which request for disposition was made, no court of this state shall any longer have jurisdiction thereof, nor shall the untried warrant, indictment, information or complaint be of any further force or effect, and the court shall enter an order dismissing the same with prejudice.”

The clear import of this section is to deny jurisdiction to the courts where the provisions of § 1 are not met.

In Nichols v. Houghton Circuit Judge (1915), 185 Mich 654, the Court was faced with a question concerning the granting by a trial court of a new trial on its own motion in a criminal case, at a time when the defendant had lost the right to file such a motion. At p 665, the Court stated, with regard to the fact that the prosecutor therein had previously consented to the motion: “This Court has never held that jurisdiction of the subject-matter can be conferred by consent or waiver.” And, continuing at p 666:

“The authority is uniform that jurisdiction of the subject-matter cannot be conferred by consent of the parties, or by want of objection, upon a court, where, by statute, it has none. 1 Bishop’s New Criminal Procedure, § 123, stated the rule as follows:
“ ‘Jurisdiction comes solely from the law, in no degree from consent of litigants. So that neither consent nor anything else can authorize a court to act in a cause outside the sphere which the law has ordained for it.’ ”

See, also, 1 Gillespie, Mich Criminal Law & Procedure (2d ed), § 60.

Defendant was incapable of conferring on the trial court the jurisdiction which had been removed by statute. The trial court was without jurisdiction to accept the guilty plea and the untried complaint, upon which the case was based, was void at the time of the plea. The plea was, therefore, without effect and cannot act as an estoppel. By the terms of the statute the only proper action for the trial court was to enter an order dismissing the case with prejudice.

The prosecutor also argues “that no notification to the involved department was received prior to the time defendant was brought back to [Wayne County] * * * March 13, 1968, for trial on the matter now at bar.” The argument is based on the following language of the statute:

“Whenever the department of corrections shall receive notice that there is pending in this state any untried warrant * * * against any inmate * * * such inmate shall be brought to trial within 180 days after the department of corrections shall cause to be delivered to the prosecuting attorney of the county in which such warrant, * * * is pending-written notice of the place of imprisonment of such inmate and a request for final disposition of such warrant.”

A similar argument was raised in People v. Farmer (1969), 16 Mich App 148, 150:

“The people contend that the statute is not applicable because the record does not indicate when the required written notice was sent to the department of corrections, nor when the required certified letter was sent from the department of corrections to the Wayne county prosecutor.”

In rejecting the argument this Court cited our prior decision in People v. Haynes (1967), 5 Mich App 641, 648, 649:

“The prosecutor in a case which originated in his county is certainly charged with a duty to keep his own records up to date and to give the department notice of the proceedings if he is desirous of receiving information from the department pursuant thereto. If the prosecutor did not give the department the necessary information, it would follow that the department could not be expected to give him subsequent notice.”

The statute implicitly places a duty on the prosecutor to notify the Department of Corrections within a reasonable time that an untried warrant, indictment, information or complaint is outstanding against the defendant and a duty on that department to respond. A breach of these duties cannot be later raised to bar application of the statute and, thereby, frustrate the intent of the legislature.

Judge Quinn concurs in this opinion although it is contrary to his views as expressed in People v. Haynes (1967), 5 Mich App 641. No other judge of this Court having agreed with his views expressed in Haynes, and the Supreme Court not having passed on them, he feels it would be nothing but obstinacy to reassert his views.

Eeversed.

All concurred. 
      
       MCLA § 750.360 (Stat Ann 1954 Rev § 28.592), and MCLA § 750.92(3) (Stat Ann 1962 Rev § 28.287[3]).
     
      
       This Court, in People v. Loney (1968), 12 Mich App 288, 292, rephrased the policy as follows:
      “The purpose of the statute is clear. It was intended to give the inmate, who had pending offenses not yet tried, an opportunity to have the sentences run concurrently consistent with the principle ’ of law disfavoring accumulations of sentences.”
     
      
       Indeed, we note that other than the return of service for several subpoenas in October and November of 1966, no action was taken by the prosecutor in the instant case between the arraignment in June, 1966, and the motion for the writ of habeas corpus in March, 1968, some 21 months later.
     
      
      
        Nichols v. Houghton Circuit Judge (1915), 185 Mich 654, was later followed in People v. Wilson (1929), 246 Mich 282, where the Court held the statutory period for motions for new trials to be jurisdictional.
     
      
       Among the authorities cited by the Court in Nichols, supra, is Perkins v. Perkins (1913), 173 Mich 690, a civil suit, thereby indicating that the rule for waiving subjeet-matter jurisdiction is the same for civil and criminal actions. Por the general rule in cjivil spits, see: 20 Am Jur 2d, Courts, § 95,
     
      
       The only letter from the Department of Corrections is one addressed to defendant’s attorney dated October 14, 1968 and stating infer alia: “We received no notification relating to the attempted larceny from a building charge prior to his being released to stand trial.”
     