If this opinion indicates that it is “FOR PUBLICATION,” it is subject to 

revision until final publication in the Michigan Appeals Reports.

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S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellant,

FOR PUBLICATION

March 3, 2022

9:15 a.m.

v No. 355299

Muskegon Circuit Court

JUSTIN SCOTT WITKOSKI, LC No. 20-000702-FH

Defendant-Appellee.

Before: RIORDAN, P.J., and K. F. KELLY and SWARTZLE, JJ.

SWARTZLE, J.

When a prosecutor brings a criminal charge against an inmate of a state penal institution, 

state law requires that, once the prosecutor has received written notice from the Department of 

Corrections, the prosecutor must proceed promptly and take good-faith action within 180 days to 

bring the case to the point of readiness for trial. The circuit court dismissed the criminal charges 

in this case based on this “180-day rule.” The circuit court abused its discretion in doing so, 

however, because a significant amount of the delay in bringing defendant’s case to trial was not 

the fault of the prosecutor, but rather resulted from our Supreme Court’s decision to suspend jury 

trials during the early days of the Covid pandemic. Accordingly, we reverse the circuit court’s 

dismissal of charges against defendant.

I. BACKGROUND

The prosecutor charged defendant with one count of assault with intent to do great bodily 

harm less than murder, MCL 750.84, and one count of possession of child sexually abusive 

material, MCL 750.145c(4)(a). The allegations of the underlying incident are not relevant to this

appeal. The prosecutor received written notice from the Department of Corrections on October 

22, 2019, that defendant was incarcerated at a state prison serving a sentence for an unrelated 

conviction. The notice triggered MCL 780.131, also known as the 180-day rule. The 180-day 

period expired on April 19, 2020.

On January 10, 2020, the prosecutor notified the district court that the 180-day rule applied 

to this case. Defendant was arraigned on January 27, and a probable-cause conference was held 

on February 5. The matter was bound over to the circuit court on February 12, and the felony 
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complaint was filed the same day. Defendant then sent discovery requests to the prosecutor. A 

pretrial conference was scheduled for March 3, but it had to be rescheduled to March 16 because 

the prosecutor did not file a writ for defendant’s appearance from prison. 

On March 15, the day before the pretrial hearing was scheduled to take place, the Michigan 

Supreme Court issued Administrative Order No. 2020-1. Administrative Order No. 2020-1, ___ 

Mich ___ (2020). Administrative Order 2020-1 imposed emergency measures on the Judiciary 

as a result of the Covid-19 pandemic. Administrative Order 2020-2 was entered three days later 

on March 18. Administrative Order No. 2020-2, ___ Mich ___ (2020). Administrative Order 

2020-2 instructed trial courts to adjourn all criminal matters, including jury trials, until after 

April 3, with a few exceptions not relevant here. Administrative Order 2020-1 and 2020-2 were 

later extended to April 14, see Administrative Order 2020-5, ___ Mich ___ (2020), then April 30, 

see Administrative Order 2020-7, ___ Mich ___ (2020), and finally for an indefinite period,

Administrative Order 2020-12, ___ Mich ___ (2020). On April 23, all jury trials were delayed 

until the later of June 22 or further notice. Administrative Order 2020-10, ___ Mich ___ (2020).

April 19—the final day of the 180-day period—came and went without any further action 

in this case. Ten days later, the prosecutor responded to defendant’s discovery request. A pretrial

hearing was held on July 29, and the jury trial was scheduled for October 19, 2020—the first day 

the prosecutor believed that the circuit court would be able to hold a jury trial under our Supreme 

Court’s administrative orders. On September 1, defendant moved to dismiss this case on the basis 

that the prosecutor had violated the 180-day rule. Following a hearing, the circuit court concluded 

that the prosecutor had not proceeded in good faith to set this matter for trial and dismissed this 

case. 

This appeal followed. On appeal, the prosecutor asserted for the first time that the office 

took immediate action to alert the district court that defendant was an inmate with the Department 

of Corrections. In support, the prosecutor pointed to the district court’s register of actions, which 

does have the following minute entry for October 22, 2019: “VIDEO ARRAIGNMENT FORM 

RECEIVED FROM PROSECUTOR’S OFFICE.” There is nothing else in the record, however, 

to indicate what the district court purportedly received from the prosecutor that day—the only 

letter in the record from the prosecutor to the district court referencing the 180-day rule is the one 

dated January 10, 2020. Moreover, defendant argued before the circuit court that the prosecutor 

had not alerted the district court about the 180-day rule until January 10, 2020, and the prosecutor 

did not challenge this factual assertion, either during the hearing or in the prosecutor’s 

supplemental brief filed after the hearing. As part of its ruling in favor of defendant, the circuit 

court made the factual finding that the district court had not been alerted about the 180-day rule 

until January 10, 2020. In all other respects, the parties have argued on appeal consistent with 

their arguments before the circuit court.

II. ANALYSIS

We review for an abuse of discretion a circuit court’s decision on a motion to dismiss. 

People v Herndon, 246 Mich App 371, 389; 633 NW2d 376 (2001). We review de novo questions 

of law, including statutory interpretation. People v Lown, 488 Mich 242, 254; 794 NW2d 9 (2011). 

The circuit court’s attributions of delay are reviewed for clear error. People v Crawford, 232 Mich 

App 608, 612; 591 NW2d 669 (1998).
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The requirements of the 180-day rule are set forth in MCL 780.131(1), which provides in 

relevant part:

Whenever the department of corrections receives notice that there is 

pending in this state any untried warrant, indictment, information, or complaint 

setting forth against any inmate of a correctional facility of this state a criminal 

offense for which a prison sentence might be imposed upon conviction, the inmate 

shall be brought to trial within 180 days after the department of corrections causes 

to be delivered to the prosecuting attorney of the county in which the warrant, 

indictment, information, or complaint is pending written notice of the place of 

imprisonment of the inmate and a request for final disposition of the 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 or disciplinary credits earned, the time of parole eligibility of 

the prisoner, and any decisions of the parole board relating to the prisoner.

When a prosecutor violates the 180-day rule, the following consequences apply:

In the event that, within the time limitation set forth in section 1 of this act, 

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. [MCL 780.133.]

The 180-day rule is distinct from a criminal defendant’s constitutional right to a speedy trial under 

our federal and state Constitutions, US Const, Am VI; Const 1963, art 1, § 20, and this latter right 

is not currently before us on appeal.

With respect to the 180-day rule, our Supreme Court has concluded that the Legislature did 

not intend to require that a trial necessarily take place within 180 days. People v Hendershot, 357 

Mich 300, 303; 98 NW2d 568 (1959). As explained by the Hendershot Court, “The statute does 

not require the action to be commenced so early within the 180-day period as to insure trial or 

completion of trial within that period.” Id. at 304. Rather, if “apparent good-faith action is taken 

well within the period and the people proceed promptly and with dispatch thereafter toward 

readying the case for trial, the condition of the statute for the court’s retention of jurisdiction is 

met.” Id. 

Our Supreme Court revisited the 180-day rule in Lown, 488 Mich 242, just over a decade 

ago. The Lown Court explained, “The object of [the 180-day] rule is to dispose of new criminal 

charges against inmates in Michigan correctional facilities; the rule requires dismissal of the case 

if the prosecutor fails to commence action on charges pending against an inmate within 180 days 

after the [Department] delivers notice of the inmate’s imprisonment.” Lown, 488 Mich at 246. 

But “the rule does not require that a trial be commenced or completed within 180 days of the date 

notice was delivered.” Id. Rather, “it is sufficient that the prosecutor proceed promptly and move 

the case to the point of readiness for trial within the 180-day period.” Id. (cleaned up). 

“Significantly, although a prosecutor must proceed promptly and take action in good faith in order 
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to satisfy the rule, there is no good-faith exception to the rule. Instead . . . good faith is an implicit 

component of proper action by the prosecutor, who may not satisfy the rule simply by taking 

preliminary steps toward trial but then delaying inexcusably.” Id. at 246-247. Stated differently, 

“the requirement that a prosecutor proceed in ‘good faith’ means simply that [the prosecutor] must 

in fact commence action and cannot satisfy the rule by taking preliminary steps without an 

ongoing, genuine intent to promptly proceed to trial, as might be evident from subsequent 

inexcusable delays.” Id. at 273.

Additionally, “the statutory 180-day period is, by the plain terms of the statute, a fixed 

period of consecutive days beginning on the date when the prosecutor receives the required notice 

from the [Department].” Id. at 247. “Thus, the relevant question is not whether 180 days of delay 

since that date may be attributable to the prosecutor, but whether action was commenced within 

180 calendar days following the date the prosecutor received the notice. If so, the rule has been 

satisfied unless the prosecutor’s initial steps are followed by inexcusable delay beyond the 180-

day period and an evident intent not to bring the case to trial promptly.” Id. (cleaned up). Given 

this, “a court should not calculate the 180-day period by apportioning to each party any periods of 

delay after the [Department] delivers notice.” Id.

On appeal, defendant places the blame for the delay squarely on the shoulders of the 

prosecutor. It certainly could be argued that the prosecutor did not follow “best practices” in 

bringing the matter to a rapid resolution. The Department notified the prosecutor in October 2019

that the 180-day rule applied. The circuit court found that the prosecutor did not take any action 

for nearly three months—about half of the 180 days. While the prosecutor challenges this factual 

finding on appeal, there is insufficient evidence in the record to show that the circuit court clearly 

erred, and so we accept the circuit court’s factual finding on this point. Then, the pretrial hearing 

had to be adjourned several days because the prosecutor did not file a writ for defendant’s 

appearance from prison. It was not until several days after the 180-day period had expired that the 

prosecutor responded to defendant’s discovery request.

But, a prosecutor does not necessarily violate the 180-day rule solely because more 

diligence could have been employed. Instead, the 180-day rule requires that the prosecutor act in 

good faith and “proceed promptly and move the case to the point of readiness for trial within the 

180-day period.” Id. at 246 (cleaned up). 

Nothing in the record suggests that the prosecutor initially delayed proceedings until 

January 2020 in a bad-faith attempt to delay trial. As for the March 3 pretrial hearing, although 

the prosecutor should have filed a writ for defendant’s appearance, that miscue resulted in only a 

brief delay. As for the discovery response, while the prosecutor similarly should have responded 

sooner, the resulting delay had little-to-no practical impact on the proceedings because our 

Supreme Court had imposed emergency measures in the meantime. Moreover, we note that trial 

was eventually scheduled to begin on October 19, 2020, the first day a jury trial was again 

permitted in that circuit court under our Supreme Court’s administrative orders.

Significantly, much of the delay in defendant’s scheduled jury trial resulted from our 

Supreme Court’s decision to suspend jury trials in response to the Covid-19 pandemic. This delay 

is somewhat analogous to the one encountered in People v Schinzel, 97 Mich App 508, 512; 296 

NW2d 85 (1980), where the delay was caused by a wholesale change in docketing systems 
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approved by our Supreme Court. The Schinzel Court concluded that the delay was excusable under 

the 180-day rule. Id. at 513. Although we are not bound by the decision in Schinzel because it 

was issued prior to November 1, 1990, MCR 7.215(J)(1), we find its analysis on this question 

persuasive.

As a counter-example, this case does not present a situation in which trial courts remained 

open for jury trials, but subject to heightened Covid-19 safety measures. See, e.g., Administrative 

Order of the Western District of Michigan 20-MS-024; Administrative Order of the Western 

District of Michigan 20-MS-029; Administrative Order of the Western District of Michigan 20-

MS-037. In such a circumstance, the prosecutor would have been expected to bring the case to 

trial promptly because a jury trial would have been permitted. But this was not an option here.

Defendant counters that the prosecutor could have done more in the ensuing weeks after 

the emergency measures were put in place, but instead, the prosecutor delayed until July 2020 to 

hold a pretrial hearing. This might be the case, but again, the standard is not whether the prosecutor 

could have moved faster. Rather, the prosecutor must take good-faith actions within the 180-day 

period and move promptly and with dispatch toward readying the case for trial.

Our review of the record confirms that the prosecutor took necessary steps to get this case 

ready for trial within a practicable time-frame given the circumstances. While the case was not 

fully ready for trial when the 180-day period expired, our case law does not require that the trial 

actually take place within that time period and, in any event, criminal proceedings and jury trials 

in our state courts were suspended weeks before the time period had expired. The prosecutor’s

actions were sufficient to have trial ready for the first possible day the circuit court was permitted 

to resume jury trials. In fact, given the timing of our Supreme Court’s orders, defendant’s trial 

would have very likely begun on October 19 in any event, even if more diligence had been shown 

at the outset. The prosecutor did not cause an inexcusable delay in readying defendant’s case for

trial, and the circuit court abused its discretion in concluding that the prosecutor violated the 180-

day rule.

III. CONCLUSION

For the reasons stated in this opinion, we reverse the circuit court’s order dismissing the 

charges against defendant. We remand for proceedings consistent with this opinion. We do not 

retain jurisdiction.

/s/ Brock A. Swartzle

/s/ Michael J. Riordan

/s/ Kirsten Frank Kelly