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STATE OF MICHIGAN
COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant, v DESHAWN PIERRE SMITH, Defendant-Appellee.

UNPUBLISHED May 31, 2007

No. 268981 Wayne Circuit Court LC No. 05-006223-01

Before: Meter, P.J. and Kelly and Fort Hood, JJ. PER CURIAM. Plaintiff appeals as of right from the trial court's order denying a motion for reconsideration of the court's decision to dismiss the case with prejudice. We reverse and remand for reinstatement of the charges against defendant. This appeal is being decided without oral argument pursuant to MCR 7.214(E). Defendant was charged with possession of 50 grams or more but less than 450 grams of cocaine, MCL 333.7403(2)(a)(iii), felon in possession of a firearm, MCL 750.224f, and carrying a concealed weapon in a vehicle, MCL 750.227. Plaintiff also sought sentence enhancement pursuant to the third habitual offender statute, MCL 769.11. A jury trial commenced, but during voir dire, the prosecutor received a note. After a discussion at the bench, the trial court excused the prospective jurors, telling them that their services would not be needed in the matter. The prosecutor revealed that she had been informed that the evidence in the case had been destroyed. Defendant moved to dismiss. The trial court granted defendant's motion adding that the case would be dismissed "with prejudice." Shortly thereafter, plaintiff moved for reconsideration and reinstatement of the charges. The motion indicated that the narcotics evidence had not been destroyed; the assertion to the contrary resulted when the wrong lockseal number was entered into the computer in the property division. The motion acknowledged that the weapon found in defendant's vehicle had been destroyed. The motion emphasized that jeopardy had not attached because the jury had not been sworn when the case was dismissed. The trial court held a hearing and denied the motion for reconsideration. Initially, the trial court expressed frustration with the layers of bureaucracy with which courts had to deal. Thereafter, the trial court stated that it would not reinstate the case because it believed that each -1-


party should get "one bite at the apple, and I mean just one." Furthermore, the trial court asserted that it did not see how the prosecution could win the case even though the prosecutor had "all that silly paperwork, people get real suspicious."1 The Double Jeopardy clauses of the United States Constitution and the Michigan Constitution provide that an accused may not be put in jeopardy twice for the same offense. US Const, Am V; Const 1963, art 1,

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