Denial of a motion to file a second amended information; MCL 767.76; MCR 6.112(H); Denial of a nolle prosequi motion; MCL 767.29; Distinguishing People v Borowka (Unpub)

The court held that the trial court abused its discretion in “denying the prosecution’s motion to amend the information to add the third-degree home invasion charge” and in denying the prosecution’s nolle prosequi motion. As to the motion to amend, the court concluded there was no unfair surprise. In fact, the prosecution and defense counsel “had worked out a plea deal; the prosecutor alluded to this when he argued that an amendment would further ‘the interest of fairness, judicial economy’ and ‘not wasting the time of all of the parties and witnesses in this case who have shown up here today for purposes of at least proceeding with a bench trial if not a - - a plea in this case.’” The day before the scheduled bench trial, defendant-Plain “filed an emergency motion for a plea hearing representing that negotiations had produced a plea offer he wished to accept. And defense counsel voiced no objection to the amendment, thereby disavowing either prejudice or surprise.” Further, defendant did “not contest this issue on appeal.” As to the nolle prosequi motion, the court found that the unpublished case on which the trial court relied, Borowka, was distinguishable. The circumstances in that case were “far different than those that exist here. The prosecutor in Borowka sought to ‘unilaterally derail defendant’s trial’ after the [trial] court denied her second request for an adjournment.” Further, the defendant in that case “vigorously opposed” the motion, and “would have been prejudiced by a nolle prosequi[.]” The court found there were no “such impediments to a nolle prosequi” in the record here. The prosecution presented “an eminently reasonable explanation for a dismissal without prejudice[,]” asserting it was appropriate “‘so that the people can essentially reauthorize this case with charges that we believe will be supported by the proofs, and are appropriate under the circumstances.’” The court noted while the case was delayed, it was “not due to a request or the fault of the prosecution. The record reflects that once a decision was made to charge Plain appropriately, both sides proceeded in good faith. Although Plain’s brief on appeal claims that he would be unfairly prejudiced by remand for a trial, he waived this objection by agreeing with the prosecution’s request.” Reversed and remanded.