State of Michigan v BRYAN KNEZ
Docket No. 99088
Court of Appeals of Michigan
173 Mich App 402; 433 NW2d 423
April 19, 1988, Submitted December 5, 1988, Decided
Subsequent case developments: Application for Leave to Appeal Denied June 27, 1989.
Before: Michael J. Kelly, P.J., and Joseph B. Sullivan and M. John Shamo, * JJ.
* Recorder's Court judge, sitting on the Court of Appeals by assignment.
Opinion by: KELLY
OPINION
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 People v Knez, unpublished opinion per curiam of the Court of Appeals, decided July 8, 1988.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). 1 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.
1 The summary of factual background from the unpublished per curiam opinion follows:
[Defendant] 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 dismissal 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.
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.