People v. Cooke 419 Mich. 420

People v Cooke

Levin, J.

The question presented is whether the people may appeal from an order acquitting a defendant on the basis of insufficiency of the evidence entered after a jury has returned a verdict of guilty. We agree with the Court of Appeals that § 12 of the Code of Criminal Procedure1 does not authorize an appeal from an order of acquittal made after the defendant has been put in jeopardy,2 and affirm the decision of the Court of Appeals3 dismissing the people’s appeal.

I

Arlington Cooke was charged with burning insured property.4 At the conclusion of the people’s proofs, Cooke moved for a directed verdict. The judge denied the motion, but suggested that Cooke might renew it after the jury had returned a verdict. The jury found Cooke guilty, and he renewed the motion. The judge granted the motion, finding that there was sufficient evidence of an incendiary burning, but insufficient evidence that Cooke had wilfully burned the property.

II

The constitution secures to a defendant in a criminal case a right of appeal, but does not *425provide for an appeal by the people.5 The people may appeal only to the extent provided by statute.6

Section 308 of the Revised Judicature Act provides that the Court of Appeals has jurisdiction of appeals from all final judgments of a circuit court.7 *426Section 12, ch X, of the Code of Criminal Procedure provides, however, that the people may appeal only from a decision based on the invalidity or construction of a statute or "a decision or judgment sustaining a special plea in bar, when the defendant has not been put in jeopardy”.8 Relying on this Court’s opinions in People v Bla-*427chura, 390 Mich 326; 212 NW2d 182 (1973), and People v Pummer, 399 Mich 326; 249 NW2d 78 (1976), the people contend that § 308 of the Revised Judicature Act provides the people with an appeal of right from all final judgments of the circuit court, and that § 308 supersedes the limitations on prosecutor appeals set forth in the Code of Criminal Procedure. Cooke counters that the Legislature re-enacted the limitations in § 12 of the Code of Criminal Procedure after this Court’s decisions in Blachura and Pummer, and that legislative reaífirmation. of those limitations supersedes those decisions.

A review of the history of these statutory provisions and the case law persuades us that the Court of Appeals correctly dismissed the appeal because the people do not have a right to appeal outside of the express provisions of the Code of Criminal Procedure. By re-enacting the limiting provisions of § 12 of the Code of Criminal Procedure, the Legislature has evinced its intention that appeals by the people be allowed only in the specific instances set forth in the statute. Because this is not one of those instances, the Court of Appeals is without jurisdiction to hear this appeal by the people.

A

The Legislature first provided for access by the people to the appellate process in 1917 by enacting that a "writ of error” might be taken to this Court from certain orders "based upon the invalidity or construction of [a] statute”.9 That language was incorporated into the Code of Criminal Procedure *428in 1927 and amended in 1941 to provide for somewhat broader rights of appeal.10

The 1963 Constitution established the Court of Appeals and provided that "[t]he jurisdiction of the court of appeals shall be provided by law”.11 Pursuant to the constitution, the Legislature enacted § 308 of the Revised Judicature Act.

In Blachura, supra, this Court held that the people could appeal to the Court of Appeals from an order of the trial court granting a defendant in a criminal case a new trial. Noting that § 12 "was last amended in 1942, long before the new constitution established the Court of Appeals and therein directed that its jurisdiction be established by law”, the Court stated that "[i]t cannot logically be said that [§ 12] is the answer to the constitu-tionál directive to establish, by law, jurisdiction of the Court of Appeals”. Id., pp 334-335.12 Because § 12 of the Code of Criminal Procedure was "addressed to old writs of error coming before the *429Supreme Court”, "deal[t] with a now obsolete court structure and us[ed] terms of art alien to modern practitioners”, the Court concluded that § 308 of the Revised Judicature Act had superseded the limiting provisions of § 12 of the Code of Criminal Procedure. Id., pp 335, 337.13

This Court again addressed the scope of the people’s right to appeal in People v Pummer, supra, p 331,14 and said that "in light of Blachura and Jackson County Prosecutor [v Court of Appeals, 394 Mich 527; 232 NW2d 172 (1975)], there should remain little question that appeals by the prosecutor, like those of all other litigants, are governed by” § 308 of the Revised Judicature Act and rules formulated by this Court.15

B

After Blachura and Pummer, the Legislature, in 1977, revised and re-enacted § 12 of the Code of Criminal Procedure.16 By substituting "[a]n appeal” for "[a] writ of error” and deleting "in said state direct to the supreme court thereof’ following "court of record” in the introductory paragraph, the amendment eliminated the outdated language discussed in Blachura. The statute no longer dealt with an obsolete court structure, and *430it employed only those terms of art familiar to current practitioners.

The Legislature’s intent that appeals by the people be governed by the specific provisions of § 12 of the Code of Criminal Procedure rather than by § 308 of the Revised Judicature Act is also demonstrated by its subsequent amendment, in 1980, of § 3 of the same part of the Code of Criminal Procedure.17 Before the amendments to § 12, § 3 provided that "[w]rits of error in criminal cases shall issue only in the discretion of the supreme court or any justice thereof, on proper application therefor”. 1980 PA 506 amended § 3 to begin ”[sjubject to the limitations imposed by section 12 of this chapter, an aggrieved party shall have a right of appeal from a final judgment or trial order as follows”. (Emphasis supplied.) Section 3 then goes on to provide the time period for filing a claim of appeal in criminal cases, thus establishing necessary "details” of the appellate process.

The people contend that the Legislature inadvertently revised § 3 and § 12 without being aware of the Blachura and Pummer decisions. It is of no significance, however, whether the Legislature was or was not aware of this Court’s decisions in Blachura or Pummer. The Legislature, not this Court, has the power under the constitution to prescribe the jurisdiction of the Court of Appeals. By re-enacting § 12 and revising § 3, the Legislature indicated its intention that there be the limitations on the people’s right to appeal set forth in § 12. Neither the Legislature’s ignorance of a contrary construction by this Court of § 308 and § 12 nor the 1981 amendment of § 30818 gainsays the *431clear legislative statement that § 12 is viable. It is no longer open to this Court to say that the Legislature intended that § 308 supersede § 12. Section 12 must be given meaning and be enforced.

C

The people’s argument that § 12 does not limit the people’s right to appeal because it does not contain express words of limitation is not persuasive. First, § 3 refers to the "limitations imposed by section 12”, indicating that the Legislature intended the circumstances set forth in § 12 to be exclusive. Second, the language of § 12 is almost identical to that of the Federal Criminal Appeals Act before Congress amended that act in 1970;19 *432the United States Supreme Court held that the earlier version of the act precluded the government from appealing under circumstances virtually identical to those of the instant case.20 United States v Sisson, 399 US 267; 90 S Ct 2117; 26 L Ed 2d 608 (1970). Third, and perhaps most important, if the people’s argument prevails, § 12 would be rendered meaningless.21

*433D

Read as a statute providing for appeal only in limited circumstances, § 12 does not authorize an appeal by the people in this case. The only provision of § 12 that might apply to the instant appeal is the provision that allows appeals "from a decision or judgment sustaining a special plea in bar, when the defendant has not been put in jeopardy”. Because the defendant was put in jeopardy in this case,22 § 12 does not permit the people’s appeal.

Blachura, Pummer, and Jackson County Prosecutor, to the extent that they can be read as authorizing an appeal by the people except as provided for in § 12, shall be deemed to be overruled.

We affirm.

Williams, C.J., and Kavanagh, Ryan, Brick-ley, and Cavanagh, JJ., concurred with Levin, J.

People v Robinson

Levin, J.

In People v Cooke, ante, p 424, this Court held that the people may only appeal subject to the limitations of § 12 of Chapter X of the Code of Criminal Procedure.1 That decision governs decision in the instant case.

I

Jerry Robinson was charged with delivery of LSD.2 He waived a jury trial. The people presented their proofs. Robinson chose to present none, and the proofs were closed. Finding that Robinson had *434been entrapped, the judge ordered the case dismissed and Robinson discharged. The Court of Appeals dismissed the people’s appeal on jurisdictional grounds, holding that the1 people may only appeal in the limited circumstances enumerated in § 12 and that § 12 does not authorize an appeal from an acquittal after jeopardy has attached.3 118 Mich App 220; 324 NW2d 795 (1982).

II

This Court addressed the question whether a prosecutor has a right to appeal outside of the express provisions of § 12 in People v Cooke, supra. We held that the people may appeal only in the circumstances provided in § 12. Applying that holding to this case, we conclude that the Court of Appeals was correct in dismissing the prosecutor’s appeal. Section 12 does not authorize an appeal from an acquittal after jeopardy has attached.4 Because we affirm the Court of Appeals on statutory grounds, we need not reach the double jeopardy question discussed in the briefs.

Affirmed.

Williams, C.J., and Kavanagh, Ryan, Brick-ley, and Cavanagh, JJ., concurred with Levin, J.

Boyle, J.

(dissenting in both cases). The prosecution argues that the jurisdiction of the Court of Appeals to hear prosecutorial appeals is governed by Const 1963, art 6, §10; MCL 600.308; MSA *43527A.308 (RJA § 308), and GCR 1963, 806.2(2), notwithstanding the provisions of MCL 770.12; MSA 28.1109.1 agree.

It is clear that this Court has judicially interpreted the jurisdiction of the Michigan Court of Appeals to include appeals by prosecuting attorneys in matters such as those raised in the instant case. See, e.g., People v Pummer, 399 Mich 326; 249 NW2d 78 (1976); People v Blachura, 390 Mich 326; 212 NW2d 182 (1973). These decisions recognized that "there should remain little question that appeals by the prosecutor, like those of all other litigants, are governed by MCL 600.308; MSA 27A.308, and rules formulated by our Court”. People v Pummer, supra, p 331.

I reject the argument that the legislative revision of either MCL 770.12; MSA 28.1109, effectuated by 1977 PA 34, or MCL 770.3; MSA 28.1100, effectuated by 1980 PA 506, was intended to restrict the authority of this Court to promulgate and implement rules governing appellate practice and procedure for Michigan courts, or to resurrect limitations on the people’s right of appeal previously rejected by this Court.

The 1977 amendments of the Code of Criminal Procedure were part of a legislative effort to limit the right to post-conviction bond. In response to several "[w]ell publicized incidents in which a person convicted of a violent crime commit[ted] another serious crime while out on bail during appeal”,1 § 9a was added for the expressed pur*436poses of denying post-conviction bail to "defendants who have been convicted of an assaultive felony, unless the court finds by clear and convincing evidence that these defendants are unlikely to pose a danger to others” and providing "for an expedited appeal of those defendants not admitted to bond”.2

The addition of § 9a to the statutory scheme necessitated amendment of other bail statutes to achieve conformity. Thus, § 12, which granted a right to bail upon appeal of the state, was amended to include reference to § 9a. The only other changes involved perfunctory substitution of "appeal” for the obsolete term "writ of error” and deletion of reference to "the Supreme Court” and substitution of the phrase "the court to which the appeal is taken”, in recognition of the creation of the Court of Appeals.

Interdepartmental legislative analyses indicate that the effect of the bail provisions was the exclusive focus of the 1977 amendments.3 Examination of the legislative history of this act reveals that there was no discussion of effect upon the appellate rights of the people.4 Indeed, the proposed bill was endorsed and supported by the Attorney General, the District Judges’ Association Legislative Committee, the Michigan Sheriffs’ Association, the *437Michigan State Bar, and the Michigan State Police.5

Analysis of legislative history also supports the argument that the 1980 amendment of MCL 770.3; MSA 28.1100 should not be interpreted as a legislative declaration of limitation upon the appellate rights of the people. The Michigan Law Revision Commission, in recommending the amendment, emphasized that the amendment merely "restates current law” and was intended to make "primarily technical changes” which included "remov[ing] references to abolished courts”, deletion of "clearly unconstitutional provisions”, "refining of current cross-references in the Code (see, e.g., MCL 770.12)”6 and updating "to take account of the current appellate structure”, to make provisions on appeal "consistent with the Court Rules” governing appeals.7 These documents reveal that the sponsors of the bill were emphatic that it was a "technical bill only” and that it was "not intended to” and indeed, "the representatives at the Legislature insisted that it must not, change * * * nor induce any procedural changes other than those required by presently existing legislation, court rules, and Supreme Court decisions, both Michigan and federal”.8 This technical revision was originally proposed in the 1975 annual report of the Michigan Law Revision Commission and was based on a committee draft prepared and included in its 1978 report. The "current state of the law” at those times accorded the people a broad right of appeal. There is simply no basis for concluding *438that the Legislature intended to alter that right by its "technical amendments” to the Code of Criminal Procedure.9

The majority’s reliance on the re-enactment of § 12 and revision of § 3 as indicative of legislative intention to limit the people’s right to appeal is misplaced. The majority fails to recognize that the Legislature also amended, clarified, and re-enacted the broad statutory jurisdictional provisions of § 308 after its 1980 amendments to § 3. 1981 PA 206, § 1, effective June 1, 1982 (amending MCL 600.308; MSA 27A.308).10 Like its predecessor, the 1981 version of § 308 contains no language even suggesting that there are any special limitations upon the appellate rights of the people.

Correct application of well-recognized principles of statutory construction supports the conclusion that MCL 600.308; MSA 27A.308 provides an independent basis for Court of Appeals jurisdiction to hear appeals brought by the people. These principles are summarized in Pryber v Marriott Corp, 98 Mich App 50, 56; 296 NW2d 597 (1980), which stated:

*439"Statutes in pari materia are those which relate to the same thing or which have a common purpose. * * * Where two statutes are in pari materia and are in irreconcilable conflict, the one last enacted will control or be regarded as an exception to or qualification of the earlier statute.”

The majority applied these principles correctly, but based its analysis upon the erroneous premise that the 1977 and 1980 amendments were the latest expression of legislative intent. If the provisions of §§ 3, 12, and 308 are construed to be in pari materia and in irreconcilable conflict, as the majority implies, then the last one enacted, the 1981 version of § 308, will control. However, this Court has already applied these principles to make the determination that MCL 770.12; MSA 28.1109, did not irreconcilably conflict with the more recently enacted MCL 600.308; MSA 27A.308. People v Blachura, supra, pp 334-335. Thus, under either interpretation, if MCL 770.12 does anything, it may represent a grant of jurisdiction with respect to certain matters. There is absolutely no basis for interpreting the more specific provisions of this previously enacted statute as precluding an independent basis for appellate jurisdiction in another more recent statutory provision.

I do not suggest that a prosecutor has a right to appeal where a defendant has been placed in jeopardy by the decision below, or where there is no "final judgment” from which to appeal under MCL 600.308; MSA 27A.308. However, neither of those limitations bar the appeals here at issue.

In Robinson, the appeal was taken from a mid-trial ruling dismissing the case on the basis of entrapment, an objective determination that public policy was offended by police instigation of the *440offense. Defendant suffers no double jeopardy injury where he obtains, at his own request, a favorable ruling on an issue unrelated to factual guilt or innocence and the government is then permitted to appeal that ruling. United States v Scott, 437 US 82; 98 S Ct 2187; 57 L Ed 2d 65 (1977). In Cooke, the state sought to appeal a post-trial ruling on the sufficiency of evidence that resulted in overturning a guilty verdict rendered by a jury. Reversal of such a ruling on appeal would not require retrial and, therefore, would not subject the defendant to the risk of being placed twice in jeopardy. United States v Wilson, 420 US 332; 95 S Ct 1013; 43 L Ed 2d 232 (1975). Both judgments were final and, therefore, appealable under MCL 600.308; MSA 27A.308. Finding no statutory or constitutional bar to the bringing of these appeals, I would remand both cases to the Court of Appeals for consideration on the merits.