automatic waiver in Michigan

2019MCL 600.606; People v Veling, 443 Mich 23 ; 504 NW2d 456 (1993); People v Parrish, 216 Mich App 178 ; 549 NW2d 32 (1996). 5 Hayes initially refers to the Eighth Amendment to the United States Constitution, but then also refers to the Michigan Constitution, Const 1963, art 1, § 16. “[T]he Michigan provision prohibits ‘cruel or unusual’ punishments, while the Eighth Amendment bars only punishments that are both ‘cruel and unusual.’ ” People v Bowling, 299 Mich App 552 , 557 n 3; 830 NW2d 800 (2013) (some quotation marks and citation omitted).

2019MCL 600.606; People v Veling, 443 Mich 23 ; 504 NW2d 456 (1993); People v Parrish, 216 Mich App 178 ; 549 NW2d 32 (1996). 5 Hayes initially refers to the Eighth Amendment to the United States Constitution, but then also refers to the Michigan Constitution, Const 1963, art 1, § 16. “[T]he Michigan provision prohibits ‘cruel or unusual’ punishments, while the Eighth Amendment bars only punishments that are both ‘cruel and unusual.’ ” People v Bowling, 299 Mich App 552 , 557 n 3; 830 NW2d 800 (2013) (some quotation marks and citation omitted).

2017Finally, in Sands v Sands, 442 Mich 30, 36 ; 497 NW2d 493 (1993), our Supreme Court rejected this Court’s apparent adoption of “an automatic rule of forfeiture for future cases involving the concealment of marital assets.” The Sands Court observed that “a judge’s role is to achieve equity” and that “[a]n attempt to conceal assets does not give rise to an automatic forfeiture.” Id. at 36-37 .

2017Finally, in Sands v Sands, 442 Mich 30, 36 ; 497 NW2d 493 (1993), our Supreme Court rejected this Court’s apparent adoption of “an automatic rule of forfeiture for future cases involving the concealment of marital assets.” The Sands Court observed that “a judge’s role is to achieve equity” and that “[a]n attempt to conceal assets does not give rise to an automatic forfeiture.” Id. at 36-37 .

2002This Court reiterated the automatic instruction rule more recently in People v Mosko, 441 Mich 496 ; 495 NW2d 534 (1992): “Pursuant to People v Ora Jones, 395 Mich 379 ; 236 NW2d 461 (1975), and People v Chamblis, 395 Mich 408 ; 236 NW2d 473 (1975), it is clear that a defendant has a right upon request to have the jury instructed on necessarily included offenses.

2002This Court reiterated the automatic instruction rule more recently in People v Mosko, 441 Mich 496 ; 495 NW2d 534 (1992): “Pursuant to People v Ora Jones, 395 Mich 379 ; 236 NW2d 461 (1975), and People v Chamblis, 395 Mich 408 ; 236 NW2d 473 (1975), it is clear that a defendant has a right upon request to have the jury instructed on necessarily included offenses.

2002This Court reiterated the automatic instruction rule more recently in People v Mosko, 441 Mich 496 ; 495 NW2d 534 (1992): “Pursuant to People v Ora Jones, 395 Mich 379 ; 236 NW2d 461 (1975), and People v Chamblis, 395 Mich 408 ; 236 NW2d 473 (1975), it is clear that a defendant has a right upon request to have the jury instructed on necessarily included offenses.

2002This Court reiterated the automatic instruction rule more recently in People v Mosko, 441 Mich 496 ; 495 NW2d 534 (1992): “Pursuant to People v Ora Jones, 395 Mich 379 ; 236 NW2d 461 (1975), and People v Chamblis, 395 Mich 408 ; 236 NW2d 473 (1975), it is clear that a defendant has a right upon request to have the jury instructed on necessarily included offenses.

1993People v Spearman, 195 Mich App 434, 443 ; 491 NW2d 606 (1992).

1993People v Spearman, 195 Mich App 434, 443 ; 491 NW2d 606 (1992).

1987People v Harris, 110 Mich App 636 ; 313 NW2d 354 (1981); People v Collins, 388 Mich 680, 693-694 ; 202 NW2d 769 (1972); Williams, supra. In fact, the testimony of defendant’s own attorney at the hearing on remand indicates that defendant preferred not to assert the right, but instead requested adjournment so that restitution funds could be found. *357 Prejudice to the Defendant: The fourth balancing factor under the Wingo-Matlock test is the degree of prejudice to defendant flowing from the delay in trial.

1987People v Harris, 110 Mich App 636 ; 313 NW2d 354 (1981); People v Collins, 388 Mich 680, 693-694 ; 202 NW2d 769 (1972); Williams, supra. In fact, the testimony of defendant’s own attorney at the hearing on remand indicates that defendant preferred not to assert the right, but instead requested adjournment so that restitution funds could be found. *357 Prejudice to the Defendant: The fourth balancing factor under the Wingo-Matlock test is the degree of prejudice to defendant flowing from the delay in trial.

2024The Court of Appeals majority correctly held that the term “dangerous” weapon in the automatic waiver statute should be construed consistently with the meaning given that term under the felonious-assault statute as set forth in People v Goolsby, 284 Mich 375 (1938).

2024The Court of Appeals majority correctly held that the term “dangerous” weapon in the automatic waiver statute should be construed consistently with the meaning given that term under the felonious-assault statute as set forth in People v Goolsby, 284 Mich 375 (1938).

2024People v Williams, 491 Mich 164, 172 ; 814 NW2d 270 (2012).

2024People v Williams, 491 Mich 164, 172 ; 814 NW2d 270 (2012).

2023Felonious assault is governed by the Michigan Penal Code, MCL 750.1 et seq., and the automatic waiver of juvenile offenders is governed by the Code of Criminal Procedure, MCL 760.1 et seq. “[A]lthough the Penal Code and the Code of Criminal Procedure were separately enacted and have distinct purposes, the two codes relate generally to the same thing and must therefore be read in pari materia. . . .” People v Washington, 501 Mich 342 , 354 n 29; 916 NW2d 477 (2018) (quotation marks, citation, and alteration omitted).

2023Felonious assault is governed by the Michigan Penal Code, MCL 750.1 et seq., and the automatic waiver of juvenile offenders is governed by the Code of Criminal Procedure, MCL 760.1 et seq. “[A]lthough the Penal Code and the Code of Criminal Procedure were separately enacted and have distinct purposes, the two codes relate generally to the same thing and must therefore be read in pari materia. . . .” People v Washington, 501 Mich 342 , 354 n 29; 916 NW2d 477 (2018) (quotation marks, citation, and alteration omitted).

2022However, because the Michigan Supreme Court has already considered and rejected that argument, and because Miller does not hold, or imply, that it is impermissible for juvenile offenders to be tried as adults, counsel’s failure to raise this issue was not objectively unreasonable. “[D]efense counsel’s performance cannot be deemed deficient for failing to advance a novel legal argument.” People v Reed, 453 Mich 685, 695 ; 556 NW2d 858 (1996)(citations omitted).

2022However, because the Michigan Supreme Court has already considered and rejected that argument, and because Miller does not hold, or imply, that it is impermissible for juvenile offenders to be tried as adults, counsel’s failure to raise this issue was not objectively unreasonable. “[D]efense counsel’s performance cannot be deemed deficient for failing to advance a novel legal argument.” People v Reed, 453 Mich 685, 695 ; 556 NW2d 858 (1996)(citations omitted).

2019MCL 600.606; People v Veling, 443 Mich 23 ; 504 NW2d 456 (1993); People v Parrish, 216 Mich App 178 ; 549 NW2d 32 (1996). 5 Hayes initially refers to the Eighth Amendment to the United States Constitution, but then also refers to the Michigan Constitution, Const 1963, art 1, § 16. “[T]he Michigan provision prohibits ‘cruel or unusual’ punishments, while the Eighth Amendment bars only punishments that are both ‘cruel and unusual.’ ” People v Bowling, 299 Mich App 552 , 557 n 3; 830 NW2d 800 (2013) (some quotation marks and citation omitted).

2019MCL 600.606; People v Veling, 443 Mich 23 ; 504 NW2d 456 (1993); People v Parrish, 216 Mich App 178 ; 549 NW2d 32 (1996). 5 Hayes initially refers to the Eighth Amendment to the United States Constitution, but then also refers to the Michigan Constitution, Const 1963, art 1, § 16. “[T]he Michigan provision prohibits ‘cruel or unusual’ punishments, while the Eighth Amendment bars only punishments that are both ‘cruel and unusual.’ ” People v Bowling, 299 Mich App 552 , 557 n 3; 830 NW2d 800 (2013) (some quotation marks and citation omitted).

2009Id. (citation omitted). [10] Accordingly, when a parent fails to care adequately for his child—and particularly when third parties carry out the parent's high duty in his stead—the automatic presumption in favor of the parent no longer strictly applies.

2009Id. (citation omitted). 10 Accordingly, when a parent fails to care adequately for his child — and particularly when third parties carry out the parent’s high duty in his stead — the automatic presumption in favor of the parent no longer strictly applies.

2009Indeed, the dissenting judge in the Court of Appeals in Smith noted this very concern by explaining that reversing a conviction on the ground that the prosecution had not filed a brief "would result in the unnecessary reversal of validly obtained convictions" and "would constitute an even greater waste of this state's already taxed law enforcement, prosecutorial, and judicial resources than that occasioned by this Court's review of both sides of an issue on appeal." People v. Smith, 190 Mich.App. 352, 359 , 475 N.W.2d 875 (1991) (Danhof, C.J., dissenting).

2009Indeed, the dissenting judge in the Court of Appeals in Smith noted this very concern by explaining that reversing a conviction on the ground that the prosecution had not filed a brief “would result in the unnecessary reversal of validly obtained convictions” and “would constitute an even greater waste of this state’s already taxed law enforcement, prosecutorial, and judicial resources than that occasioned by this Court’s review of both sides of an issue on appeal.” People v Smith, 190 Mich App 352, 359 ; 475 NW2d 857 (1991) (DANHOF, C.J., dissenting).

2002The Stephens Court altered that when it adopted the rational basis test for lesser misdemeanor offense instructions, derived from the federal rule established in United States v. Whitaker, 144 U.S. App DC 344, 447 F.2d 314 (1971).

2000Defendants argue that, according to the United States Supreme Court in Kent v United States, 383 US 541 ; 86 S Ct 1045 ; 16 L Ed 2d 84 (1966), due process requires a hearing before trying and sentencing a juvenile as an adult.

2000Defendants argue that, according to the United States Supreme Court in Kent v United States, 383 US 541 ; 86 S Ct 1045 ; 16 L Ed 2d 84 (1966), due process requires a hearing before trying and sentencing a juvenile as an adult.

2000In People v Black, 203 Mich App 428 ; 513 NW2d 152 (1994), this Court held that this provision did not give prosecutors judicial power.

2000In People v Black, 203 Mich App 428 ; 513 NW2d 152 (1994), this Court held that this provision did not give prosecutors judicial power.

1996In Chapman, supra at 22 , the Court declined to adopt an automatic rule of reversal because “there may be some constitutional errors which in the setting of a particular case are so unimportant and insignificant that they may, consistent with the Federal Constitution, be deemed harmless . . . .” On this basis, in order to determine whether defendant was prejudiced, inquiry must be made into what effect the trial court’s error in granting defense counsel’s amendment had on the jury’s verdict or reasonably may be inferred to have had on its verdict.

1996Lee , n. 7 supra at 86, 450 N.W.2d 883 , quoting Young, supra at 505 , 391 N.W.2d 270 .

1996Lee , n. 7 supra at 86, 450 N.W.2d 883 , quoting Young, supra at 505 , 391 N.W.2d 270 .

1993People v Cosby, 189 Mich App 461 ; 473 NW2d 746 (1991).

1993People v Cosby, 189 Mich App 461 ; 473 NW2d 746 (1991).

1993D With respect to constitutional mandates, this Court, in People v White, 390 Mich 245 ; 212 NW2d 222 (1973), held that all charges against a defendant that arise out of a single criminal act, occurrence, episode, or transaction must be brought in one prosecution.

1993D With respect to constitutional mandates, this Court, in People v White, 390 Mich 245 ; 212 NW2d 222 (1973), held that all charges against a defendant that arise out of a single criminal act, occurrence, episode, or transaction must be brought in one prosecution.

1993Fragmentation is also wasteful of prosecutorial, defense and judicial resources. [ In re RLP, 159 NJ Super 267, 272; 387 A2d 1223 (1978).] See also State v Garcia, 93 NM 51 , 53-54; 596 P2d 264 (1979), in which the New Mexico Supreme Court used the same rationale to hold that if a juvenile court finds at a traditional waiver hearing that a juvenile defendant should be prosecuted as an adult, the adult court obtains jurisdiction over the juvenile's entire case. [18] See n 5 for a discussion of the postconviction hearing required for juveniles brought before a circuit court via the automatic wai

1993Fragmentation is also wasteful of prosecutorial, defense and judicial resources. [ In re RLP, 159 NJ Super 267, 272; 387 A2d 1223 (1978).] See also State v Garcia, 93 NM 51 , 53-54; 596 P2d 264 (1979), in which the New Mexico Supreme Court used the same rationale to hold that if a juvenile court finds at a traditional waiver hearing that a juvenile defendant should be prosecuted as an adult, the adult court obtains jurisdiction over the juvenile's entire case. [18] See n 5 for a discussion of the postconviction hearing required for juveniles brought before a circuit court via the automatic wai