Bindover Following Preliminary Examination

7.23Bindover Following Preliminary Examination ¹

“If the magistrate determines at the conclusion of the preliminary examination that a felony has not been committed or that there is not probable cause for charging the defendant with committing a felony,^[²] the magistrate shall either discharge the defendant or reduce the charge to an offense that is not a felony. If the magistrate determines at the conclusion of the preliminary examination that a felony has been committed and that there is probable cause for charging the defendant with committing a felony, the magistrate shall forthwith bind the defendant to appear within 14 days for arraignment before the circuit court of that county, or the magistrate may conduct the circuit court arraignment as provided by court rule.”

A.Bindover After Waiver

“Upon waiver of the preliminary examination, the court must bind the defendant over for trial on the charge set forth in the complaint or any amended complaint.” MCR 6.110(A).

Committee Tip:

A district court magistrate, “[w]hen authorized by the chief judge of the district and whenever a district judge is not immediately available, . . . may conduct the first appearance of a defendant before the court in all criminal and ordinance violation cases, including acceptance of any written demand or waiver of preliminary examination[.]” MCL 600.8513(1). However, there is no statutory authority under which a district court magistrate may conduct a bindover proceeding.

B.Bindover After Finding of Probable Cause^³

“If the magistrate determines at the conclusion of the preliminary examination that a felony has been committed and that there is probable cause for charging the defendant with committing a felony, the magistrate shall forthwith bind the defendant to appear within 14 days for arraignment before the circuit court of that county, or the magistrate may conduct the circuit court arraignment as provided by court rule.” MCL 766.13; see also MCR 6.110(E).⁴

C.Bindover on a Greater Offense

A judge may grant a prosecutor’s motion to amend a complaint to include a greater offense where the evidence at the preliminary examination supports probable cause as to the elements of the greater offense and the amendment does not cause unacceptable prejudice to the defendant. People v Hunt, 442 Mich 359, 364-365 (1993) (holding that the trial court should have allowed the prosecutor, following the preliminary examination, to amend the complaint to charge third-degree criminal sexual conduct instead of gross indecency between males where the greater offense was supported by the evidence and the amendment would not cause “unacceptable prejudice to the defendant because of unfair surprise, inadequate notice, or insufficient opportunity to defend[]”).

In addition, a judge may, sua sponte, bind a defendant over for trial on a greater offense where the evidence presented at the preliminary examination supports the higher charge and the prosecution does not object. People v Gonzalez, 214 Mich App 513, 516-517 (1995).

D.Bindover on a Lesser Offense

“[I]f upon examination of the whole matter the evidence is insufficient to satisfy the magistrate that the offense charged has been committed and that there is probable cause to believe that the defendant committed it, then he [or she] should not bind the defendant over on the offense charged but may bind him [or her] over on a lesser offense as to which he [or she] is so satisfied.” People v King, 412 Mich 145, 154-155 (1981) (holding that the district court properly bound the defendant over on the offense of manslaughter instead of first- or second-degree murder because malice and premeditation were lacking).

“An examining magistrate has the obligation to consider binding a defendant over on lesser included offenses where such offenses are supported by the evidence offered at the preliminary examination.” People v Harris, 159 Mich App 401, 405-407 (1987) (citations omitted). “Pursuant to [MCL 766.13], even where the charged offense has not been established, if a lesser included offense is established, then [the] defendant should be bound over for trial on that charge.” Harris, 159 Mich App at 405 (holding that, although the district court properly refused to bind the defendant over for trial on an open murder charge where the evidence established that the shooting was accidental, the court erred in dismissing the case where the evidence supported a charge of involuntary manslaughter based on the defendant’s grossly negligent conduct) (citation omitted).

E.Bindover When Defendant Is Charged With Open Murder

“[T]he elements of premeditation and deliberation are not required elements for which evidence must be presented at a preliminary examination in order to bind a defendant over for trial on open murder charges.” People v Coddington, 188 Mich App 584, 593-594 (1991).

F.Jurisdiction of District Court Following Bindover

The district court’s jurisdiction over offenses cognizable in the circuit court continues “through the preliminary examination and until the entry of an order to bind the defendant over to the circuit court.” MCR 6.008(A). “The circuit court has jurisdiction over all felonies from the bindover from the district court unless otherwise provided by law.” MCR 6.008(B). “The failure of the court to properly document the bindover decision shall not deprive the circuit court of jurisdiction.” Id.

The circuit court acquires jurisdiction over the case and the defendant upon the filing of the magistrate’s return ⁵ binding the defendant over to circuit court following the preliminary examination or the defendant’s waiver of preliminary examination. People v Goecke, 457 Mich 442, 458 (1998) (citations omitted). “And just as the filing of the magistrate’s return confers jurisdiction on the circuit court, . . . it has the effect of divesting the district court of jurisdiction[.]” People v Taylor, 316 Mich App 52, 54 (2016), citing People v McGee, 258 Mich App 683, 695 (2003); People v Sherrod, 32 Mich App 183, 186 (1971) (emphasis added). “Having once vested in the circuit court, personal jurisdiction is not lost even when a void or improper information is filed.” Goecke, 457 Mich at 458-459, citing In re Elliott, 315 Mich 662, 675 (1946).

“Once a criminal case has been bound over and jurisdiction has been vested in the circuit court, there are only limited circumstances in which the circuit court may properly remand the case for a new or continued preliminary examination.” Taylor, 316 Mich App at 55 (citations omitted).

MCR 6.008(C)-(E) provide guidance regarding circuit court jurisdiction following bindover in the event that the defendant ultimately pleads guilty to or is convicted of a misdemeanor offense that would normally be cognizable in the district court.⁶

•Misdemeanor pleas. “The circuit court retains jurisdiction over any case in which a plea is entered or a verdict rendered to a charge that would normally be cognizable in the district court.” MCR 6.008(C).

•Sentencing. “The circuit court shall sentence all defendants bound over to circuit court on a felony that either plead guilty to, or are found guilty of, a misdemeanor.” MCR 6.008(D).

•Concurrent jurisdiction and probation officers. “As part of a concurrent jurisdiction plan, the circuit court and district court may enter into an agreement for district court probation officers to prepare the presentence investigation report and supervise on probation defendants who either plead guilty to, or are found guilty of, a misdemeanor in circuit court. The case remains under the jurisdiction of the circuit court.” MCR 6.008(E).

G.Remand to District Court Following Bindover ⁷

“A party challenging a bindover decision must do so before any plea of guilty or no contest, or before trial.” MCR 6.008(B).

“If, on proper motion, the trial court finds a violation of [MCR 6.110(C) (conduct of examination)], [MCR 6.110(D) (exclusionary rules)], [MCR 6.110(E) (probable cause finding)], or [MCR 6.110(F) (discharge of defendant)], it must either dismiss the information or remand the case to the district court for further proceedings.” MCR 6.110(H). MCR 6.110(H) “does not address, and leaves to case law, what effect a violation of these rules or an error in ruling on a motion filed in the trial court may have when raised following conviction.” 1989 Staff Comment to MCR 6.110.

•“If a motion to quash is filed and the circuit court determines that the evidence is insufficient to support the bindover, the circuit court is permitted to remand the case for a further examination at which the prosecutor may seek to remedy the shortcoming in the proofs needed to establish probable cause.” Taylor, 316 Mich App at 55 (citations omitted). See also People v Miklovich, 375 Mich 536, 539 (1965).

•“[A] circuit court may remand the case if the defendant waived the right to a preliminary examination and a defect in the waiver existed, if for example the waiver was made without the benefit of counsel.” Taylor, 316 Mich App at 55 (citations omitted). See also People v Reedy, 151 Mich App 143, 147 (1986).

•“The circuit court may . . . remand the case if the prosecutor adds a new charge on which the defendant did not have a preliminary examination.” Taylor, 316 Mich App at 55 (citations omitted). See also People v Bercheny, 387 Mich 431, 434 (1972).

•A circuit court is “authorized to remand a misdemeanor charge to the district court following the dismissal of the last felony charge that was bound over to circuit court.” People v Cramer, ___ Mich ___, ___ (2023), citing MCL 600.611 (additional citations omitted).

However, if the defendant “[does] not establish any of the appropriate grounds for remanding the case[]” following bindover, the circuit court may not remand the case to the district court. Taylor, 316 Mich App at 57. In Taylor, 316 Mich App at 56, following preliminary examination and bindover, the circuit court denied the defendants’ motions to quash the information; however, the circuit court subsequently granted the defendants’ motions to remand the case to the district court on the ground that a “ballistics report prepared after the preliminary examination” was potentially exculpatory. The Court of Appeals reversed the remand order, holding that “[t]he circuit court erred when it remanded the case for a continued preliminary examination[]” where “[the d]efendants did not establish any of the appropriate grounds for remanding the case.” Id. at 57 (noting that “the circuit court denied [the] defendants’ motions to quash and thereby upheld the district court’s finding of probable cause[,]” “there [was no] waiver by [the] defendants of the right to a preliminary examination that could be deemed defective[,]” “[t]he prosecutor did not seek to add new charges[,]” and “[t]he circuit court did not find a violation of any of the relevant rules related to the conduct of the preliminary examination or the probable cause determination[]”). Because “the circuit court [had] already denied the motions to quash, it was then unnecessary for either the circuit court or the district court to revisit the probable cause determination.” Id. at 57 (citations omitted). Furthermore, “[t]he emergence . . . of potentially favorable evidence after the preliminary examination does not by itself entitle a defendant to a second or continued preliminary examination[; i]nstead, the trial is generally the appropriate forum in which to present such evidence.” Id. at 58, 58 n 2 (noting that “the record indisputably establishe[d] that [the] defendants’ attorneys were well aware at the preliminary examination of the key underlying fact referenced in the ballistics report that comprised the basis of their subsequent request to remand the case for a continued preliminary examination[]”) (citations omitted).

“‘A district court magistrate’s decision to bind over a defendant and a trial court’s decision on a motion to quash an information are reviewed for an abuse of discretion.’” People v Bass, 317 Mich App 241, 279 (2016), quoting People v Dowdy, 489 Mich 373, 379 (2011). “However, ‘[t]o the extent that a lower court’s decision on a motion to quash the information is based on an interpretation of the law, appellate review of the interpretation is de novo.’” Bass, 317 Mich App at 279, quoting People v Miller, 288 Mich App 207, 209 (2010) (alteration in original). “[E]rror at the preliminary examination stage should be examined under a harmless error analysis.” People v Hall, 435 Mich 593, 602 (1990) (a defendant bound over for trial to face felony charges on the basis of hearsay testimony erroneously admitted at the preliminary examination did not constitute a ground for vacating her subsequent conviction where she received a fair trial and was not otherwise prejudiced by the error). However, “[i]f a defendant is fairly convicted at trial, no appeal lies regarding whether the evidence at the preliminary examination was sufficient to warrant a bindover.” People v Wilson, 469 Mich 1018 (2004). See also People v Bennett, 290 Mich App 465, 481 (2010) (“the presentation of sufficient evidence to convict at trial renders any erroneous bindover decision harmless”).

H.Prosecutor’s Appeal to Circuit Court

“‘[I]f the prosecutor is of the opinion that the examining [judge] erred in not binding the defendant over for trial, [he or she should] appeal to the circuit court.’” People v Robbins, 223 Mich App 355, 361-362 (1997), quoting People v Nevitt, 76 Mich App 402, 404 (1977).

A reviewing court may not reverse a judge’s bindover decision absent an abuse of discretion. People v Yost, 468 Mich 122, 126 (2003). In Yost, after a seven-day preliminary exam, the district court refused to bind the defendant over for trial on charges of open murder and felony murder, based on its determination that there was lack of credible evidence of a homicide. Id. at 123-124. The prosecutor appealed to the circuit court, which determined that the record established a sufficient basis for finding that a homicide was committed and probable cause to believe that the defendant committed it. Id. at 124. The circuit court held that the district court abused its discretion in refusing to bind the defendant over for trial. Id. On leave granted, the Supreme Court upheld the circuit court’s decision, agreeing with the circuit court that the evidence was sufficient to warrant a bindover and that the district court abused its discretion when concluding that probable cause to bind the defendant over for trial did not exist. Id. at 133.

¹See Section 1.1(F)(3)(a) for discussion of the confidentiality and management of district and municipal court case and court records following circuit-court bindover.

² See Section 7.17 for information on the probable cause inquiry and applicable evidentiary standards at the preliminary examination.

³ See Section 7.17 for information on the probable cause inquiry and applicable evidentiary standards at the preliminary examination.

⁶ MCR 6.008 was adopted by ADM File No. 2016-35, effective January 1, 2018. Although not binding authority, the Staff Comment to ADM File No. 2016-35 provides:

“The addition of Rule 6.008 establishes procedures for a circuit court to follow if a defendant bound over to circuit court on a felony either pleads guilty to, or is convicted of, a misdemeanor in circuit court. Remand to district court would remain a possibility in certain limited circumstances, including where the evidence is insufficient to support the bindover, People v Miklovich, [375 Mich 536, 539 (1965)]; People v Salazar, [124 Mich App 249, 251-252 (1983)], or where there was a defect in the waiver of the right to a preliminary examination, People v Reedy, [151 Mich App 143, 147 (1986)]; People v Skowronek, [57 Mich App 110, 113 (1975)], or where the prosecutor adds a new charge on which the defendant did not have a preliminary examination, People v Bercheny, [387 Mich 431, 434 (1972)], adopting the opinion in People v Davis, [29 Mich App 443, 463 (1971)], aff’d People v Bercheny, 387 Mich 431 (1972). See also MCR 6.110(H).”

See Section 7.23(G) for discussion of motions to quash for improper bindover and other circumstances permitting remand to district court following bindover.

⁷See Section 1.1(F)(3)(b) for discussion of the confidentiality and management of records after remand to district or municipal court following circuit-court bindover.

⁸ See Section 7.23(F) for discussion of circuit court jurisdiction following bindover.