
    PEOPLE v. FARMER
    Criminal Law — Trial—Incarcerated Defendant — Statute—Jurisdiction of Trial Court.
    Conviction of armed robbery of defendant, who was already serving a prison sentence for another offense, held, reversed for lack of jurisdiction by the trial court, where defendant’s trial did not begin within 180 days after notice was received that there was a charge pending against defendant and that he was incarcerated, and there was no good cause shown for the delay (CLS 1961, §§ 780.131, 780.133).
    Appeal from Recorder’s Court of Detroit, Samuel H. Olsen, J.
    Submitted Division 1 January 16, 1969, at Detroit.
    (Docket No. 5,699.)
    Decided February 25, 1969.
    Reference for Points in Headnote
    21 Am Jur 2d, Criminal Law §§ 249, 254.
    
      Herbert Parmer was convicted of robbery armed. 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 Thomas P. Smith, Assistant Prosecuting Attorney, for the people.
    
      Alan A. May, for defendant on appeal.
    BEFORE: Fitzgerald, P. J., and R. B. Burns and Bronson, JJ.
   R. B. Burns, J.

Defendant was arrested January 12, 1967, and was arraigned before the recorder’s court of the city of Detroit, January 14, 1967. On April 6, 1967, an information was filed and the defendant ivas arraigned on the information.

Defendant was sentenced to 25 to 50 years on a different charge April 26, 1967, and remanded to the department of corrections. A notation of that sentence appears on the mittimus in default of bail of the instant case.

A notice was sent to defense counsel on January 23, 1968, informing him that trial would be held on February 23, 1968. Defendant moved to dismiss the case for lack of jurisdiction because 303 days had expired since he was sentenced on April 26, 1967.

MCLA § 780.131 (Stat Ann 1969 Cum Supp § 28.969[1]) provides:

“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 inprisonment of such inmate and a requést 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 board relating to the prisoner. The written notice and statement provided herein shall be delivered by certified mail.”

MOLA § 780.133 (Stat Ann 1969 Cum Supp § 28.969[3]) provides:

“In the event that, within the time limitation set forth in section 1 of this act, [§ 780.131] 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 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.

The Supreme Court, in People v. Hendershot (1959), 357 Mich 300, 303, 304, said:

“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 tbe 180-day period and an evident intent not to bring the case to trial promptly, tbe statute opens tbe door to a finding by tbe court that good-faith action was not commenced as contemplated by section 3, thus requiring dismissal.”

In tbe present ease 272 days bad elapsed without any action having been taken. As stated in People v. Haynes (1967), 5 Mich App 641, 648, 649:

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

Tbe statutory procedures were not followed and no good cause was shown for such delay. Tbe court was without jurisdiction.

Tbe conviction and judgment are reversed.

All concurred.  