Filed 9/26/14
                           CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                             FIRST APPELLATE DISTRICT

                                     DIVISION FOUR

THE PEOPLE,
        Plaintiff and Respondent,
                                                    A137203
v.
JIMMIE L. DOSS, JR.,                                (Contra Costa County
                                                    Super. Ct. No. 5-121454-3)
        Defendant and Appellant.

        Defendant Jimmie L. Doss, Jr. appeals from a judgment entered after a jury
convicted him of assault with a deadly weapon and battery. The sole issue on appeal is
whether the trial court applied an incorrect legal standard in revoking Doss’s right to
represent himself under Faretta v. California (1975) 422 U.S. 806 (Faretta).1 We
conclude that the trial court applied an incorrect standard, and we conditionally reverse
the judgment and remand for a new hearing for the court to apply the correct standard.
At the hearing, the court may consider any misconduct by Doss since its previous ruling.
If the court determines that Doss is not entitled to represent himself in a new trial, the
judgment shall be reinstated. If the court determines that Doss is entitled to represent
himself, he shall receive a new trial.

1
  Doss’s appointed counsel filed an opening brief that raised no issues and requested our
independent review under People v. Wende (1979) 25 Cal.3d 436. After conducting our
review, we ordered the parties to brief whether the trial court applied the correct legal
standard in revoking Doss’s self-representation.

                                              1
                                           I.
                                 FACTUAL AND PROCEDURAL
                                      BACKGROUND
       This case centers on the distinction between a defendant’s right under Faretta,
supra, 422 U.S. 806 to self-representation in a criminal proceeding and an inmate’s right
to certain jailhouse privileges as a consequence of self-representation. In legal terms, a
self-represented defendant has in propria persona (pro. per.) status in the proceedings.
Such a defendant who is incarcerated may also be given pro. per. privileges to engage in
certain activities, such as making telephone calls for case-related purposes, to facilitate
his or her ability to participate in the proceedings. This case involves both of these
concepts and the different legal standards that apply to them.
       Doss has an extensive criminal history. He was originally incarcerated in the
Martinez Detention Facility for charges unrelated to this case.2 He was allowed to
represent himself to defend those charges (i.e., he had pro. per. status), and he was given
pro. per. privileges in jail to facilitate his self-representation.
       The charges in this case were brought after Doss hit a fellow inmate on the hand
with a broom handle in December 2011. He was charged with felony counts of assault
with a deadly weapon and battery causing serious bodily injury.3 He was also alleged to
have personally inflicted great bodily injury in connection with both charges.4
       Doss asked for pro. per. status in this case, and his request was initially granted.
But a few months later, the Contra Costa County Sheriff’s Office suspended his pro. per.
2
  The Attorney General informs us that Doss “was recently convicted of 21 counts,
including first degree murder and other offenses,” in another Contra Costa County case
that involved at least some of those charges.
3
  The assault charge was brought under Penal Code section 245, subdivision (a)(1), and
the battery charge was brought under Penal Code sections 242 and 243, subdivision (d).
All further statutory references are to the Penal Code.
4
  The allegations of great bodily injury were made under section 12022.7, subdivision (a).
Sentencing enhancements based on previous convictions were also alleged, including
three strikes under sections 667 and 1170.12, three serious felonies under section 667,
subdivision (a)(1), and a felony conviction resulting in a prison term under section 667.5,
subdivision (b).

                                                 2
jail privileges on an emergency basis, and the People then moved for reconsideration of
his pro. per. status.5
         The revocation of Doss’s pro. per. privileges and status was considered at two
hearings in May 2012, both of which were held before the judge who had granted Doss
pro. per. status in the other case but who was not the judge who had originally granted
Doss’s pro. per. status in this case. At the first hearing, the sheriff’s office submitted a
binder containing reports of 57 incidents between January 2010 and April 2012 that it
contended demonstrated Doss’s “destructive and violent actions” and upon which it had
relied to suspend his pro. per. jail privileges. Some of the incidents in the reports were
unrelated to Doss’s pro. per. privileges or status. Doss routinely refused to obey officers,
threatened and assaulted jail personnel and other inmates, possessed contraband,
damaged thousands of dollars worth of property, and otherwise undermined jail security.
A lieutenant testified that Doss had displayed an unprecedented level of “totally violent,
disruptive, destructive[,] and . . . unruly” behavior and likened him to “a bull in a china
shop.”
         Other incidents in the reports, however, were relevant to Doss’s pro. per.
privileges or status. When not permitted to make pro. per. calls, Doss responded on
various occasions by threatening to break the jail’s windows and sprinkler pipes, “us[ing]
his waist restraints as a weapon and caus[ing] damage to the facility,” “br[eaking] the
sink off the wall in his room and us[ing] the parts to break out the window in his room,”
and “threaten[ing] to damage the facility . . . [and] striking the light fixture in his room
with enough force that he had to be placed in a safety cell in intake in leg restraints.”
Doss also used his pro. per. telephone calls for improper purposes. During a call with his
legal runner, who wanted to resign, Doss threatened to “ ‘fucking kill [him] and gas [his]

5
  Whether the People should have so moved is another matter. A “proceeding to consider
termination of [a] defendant’s Faretta rights . . . should not be the subject of a ‘motion’
by the People,” because “prosecutors [should] not . . . overstep their proper role” by
“advocat[ing] for a particular result” instead of merely “serv[ing] as an adjunct of the
court in discharging its duty to control the orderliness and integrity of the proceedings.”
(People v. Carson (2005) 35 Cal.4th 1, 11, fn. 1 (Carson).)

                                               3
mamma.’ ” Doss was also overheard claiming that “he was using the [pro. per.] calls to
‘handle business’ because he believe[d] the police [couldn’t] use the calls against him.”
       In addition to the incidents described in these reports, the People presented two
more reasons why Doss’s pro. per. status should be revoked. First, they presented
evidence that in 2010 Doss had used his pro. per. status to threaten and intimidate a
female minor who was a codefendant with him in another case and whom we shall refer
to as Doe. At the second hearing in May 2012, Doe’s attorney testified about what Doe
had reported about Doss. He said that Doe “believes that [Doss] can manipulate . . . his
pro per privileges . . . to continue to conduct business on the streets, to learn where she is,
and [to] direct harm to her wherever that might be.” He further testified that Doe claimed
that Doss had used his pro. per. status to telephone her before she was arrested. And he
testified that after Doe’s arrest, Doe received letters from Doss “mailed by a legal runner
to her while she was in custody at Juvenile Hall.” Finally, the attorney testified that Doe
reported that Doss claimed he was able to “manipulate his custodians to get information
that they had through access to the computers, things like court dates . . . and other things
that might seem innocent to someone that didn’t know his purpose, and had learned
housing arrangements and court dates of hers and others.”6
       The second additional reason the People offered for the revocation of Doss’s pro.
per. status was that Doss had been found to have abused his pro. per. status in another
case. According to the prosecutor, Doss abused his status in that case by requesting an
attorney on “[t]he eve of trial,” and the judge had denied the request after finding that
Doss made it for the purpose of delaying the proceedings.
       The judge presiding at the May 2012 hearings remarked that he had been unaware
of most of the evidence presented when he granted Doss pro. per. status in the other

6
  In response, Doss stated that he had been ordered to stay away from Doe in December
2010, which was after these incidents had occurred. He represented that the order
prohibited him from contacting Doe and that any mail from him to Doe would be
intercepted. He argued that there was no evidence that he had disobeyed the order, and
he pointed out that the People produced no evidence that he was in contact with Doe after
the summer of 2010.

                                               4
case.7 He observed, “Under Wilson [v. Superior Court (1978) 21 Cal.3d 816
(Wilson)], . . . a defendant’s pro per privileges can be revoked or restricted for jail
security, discipline, safety, and protection of the inmates or personnel. Pro per status, in
essence, doesn’t give an inmate immunity from disciplinary sanctions.” The judge then
described on the record about 30 of the jail incidents included in the binder, some related
to Doss’s pro. per. status and some not. The judge also mentioned an instance in which,
in court, Doss had “admitted to using the pro per phone to talk to family . . . on more than
one occasion.”
       Addressing Doss, the judge then ruled as follows:
       THE COURT: . . . [Y]ou’ve become such a security risk . . . over time, . . .
       [and the previous] ruling was imprudent. I should not have done it. [¶] . . .
       [W]hat you’ve done since then, you know, isn’t as great as what you did
       before, but you look at it altogether, had I . . . known then what I know
       now, there’s no way that I would have ever granted your pro per status. [¶]
       [The prosecutor] tried to tell me, but . . . her argument, for some reason,
       wasn’t persuasive enough. But when I’ve seen the documentation, and I’ve
       heard the additional evidence, I’m . . . completely convinced that the . . .
       right thing to do is to revoke your pro per status . . . and not to punish you.
       [¶] You know, I’d rather . . .

       THE DEFENDANT: I’m not mad.

       THE COURT: . . . that you be able to represent yourself . . .

       THE DEFENDANT: I’m not mad.

       THE COURT: . . . but for jail security and for the protection of witnesses.
       [¶] I’ve gone through the list of things that have happened in this case,
       and . . . it’s obvious to the court that you’ve used your pro per position
       improperly. You’ve used the phone improperly. You’ve used it to conduct
       business. You’ve used it to threaten people. [¶] The court doesn’t have to
       wait until somebody is hurt in order to restrict your privileges. [¶] The . . .
       court notes that you are indeed a security risk. You’ve assaulted deputies,

7
 The prosecutor represented that when making the previous ruling, the judge had before
him evidence of threats to the legal runner and Doe and of the finding in another case that
Doss abused his pro. per. status.

                                               5
       you’ve possessed a shank, you had fights in jail, and you committed assault
       with a deadly weapon, with a broom handle while in jail.

       THE DEFENDANT: And I ain’t going to stop.

       THE COURT: The security risks aren’t . . . heightened by your pro per
       status. You have to be housed in jail. You have to be transported . . . .
       [A]nd this isn’t the reason that I’m revoking your pro per status.

       THE DEFENDANT: Yeah, it is.

       THE COURT: I’m revoking . . . your Faretta rights because you . . . have
       abused your pro per privileges . . .

       THE DEFENDANT: On what basis?

       THE COURT: . . . by committing these crimes.

       THE DEFENDANT: What have I abused? Can I ask for cause to be
       shown now? [¶] . . . [¶]

       THE COURT: I’m speaking. [¶] So based on . . . all of this, and under
       Wilson[, supra, 21 Cal.3d 816], which says that for court security, for jail
       security, for discipline, and safety, and protection of inmates and . . .
       personnel, termination is appropriate.
       The judge then ordered “the prior orders granting [Doss] Faretta [status to be]
withdrawn” and appointed counsel for him.
       This case was later assigned to another judge for trial. Doss filed a motion in
limine to have his pro. per. status restored, arguing that the judge presiding at the May
2012 hearings had revoked it “without proper due process.” The new judge ruled, “I’m
not going to revisit [the prior judge]’s decision for the following reasons: First, it is
properly his decision to make. He was the motion judge; he was, at least in one of the
cases, the judge who initially granted the pro per privileges; he specifically stated on the
record that had he known some of the things that had happened before that he would not
have granted them. I’m not in a position to second guess that or to determine whether
that was right or wrong. [¶] . . . [¶] Another fact I leave to [the prior judge] to determine
[is] whether the fact[s] warranted the withdrawal of pro per privileges, but I think had I

                                               6
been in a position as [the prior judge] was to have reviewed that issue, I would have
reached the same conclusion. So, I’m not going to revisit it for all those reasons.”
         A jury subsequently found Doss guilty of the assault charge and accompanying
great-bodily-injury enhancement. It found him not guilty of the battery charge and
convicted him of the lesser included offense of simple battery, a misdemeanor.8 The trial
court sentenced him to prison for a term of 25 years to life for the assault and a term of
three years for the great-bodily-injury enhancement. It also sentenced him to an
additional 10 years based on prior serious felonies, for a total term of 38 years to life.9
                                              II.
                                          DISCUSSION
         A.     The Standard of Review.
         A ruling revoking a defendant’s pro. per. status is reviewed for an abuse of
discretion and “ ‘will not be disturbed in the absence of a strong showing of clear
abuse.’ ” (People v. Welch (1999) 20 Cal.4th 701, 735.) In conducting our review,
“we . . . accord due deference to the trial court’s assessment of the defendant’s motives
and sincerity as well as the nature and context of his misconduct and its impact on the
integrity of the trial in determining whether termination of Faretta rights [i.e., of pro. per.
status] is necessary to maintain the fairness of the proceedings.” (Carson, supra,
35 Cal.4th at p. 12.) A trial court abuses its discretion, however, when its ruling “rests on
an error of law.” (People v. Superior Court (Humberto S.) (2008) 43 Cal.4th 737, 746.)

8
    The battery conviction was under sections 242 and 243, subdivision (a).
9
 The enhancements for the prior serious felonies were imposed under section 667,
subdivision (a)(1), and the term for the assault was increased based on the prior strikes.
The trial court did not sentence Doss to a separate term for the battery under section 654,
and it struck a finding of a prior prison term under section 667.5, subdivision (b).

                                               7
       B.     The Trial Court Applied an Incorrect Legal Standard in
              Revoking Doss’s Pro. Per. Status.
       Doss argues that the trial court abused its discretion by applying an incorrect legal
standard and revoking his pro. per. status without considering the alternative of merely
restricting his pro. per. privileges.10 We agree.
       The Sixth and Fourteenth Amendments give criminal defendants the right to
represent themselves. (Faretta, supra, 422 U.S. at pp. 807, 821.) A trial court generally
must grant a timely, unequivocal request for self-representation. (See People v. Butler
(2009) 47 Cal.4th 814, 824-825 (Butler).) A prerequisite of self-representation, however,
is that the defendant be willing and able “to abide by rules of procedure and courtroom
protocol.” (McKaskle v. Wiggins (1984) 465 U.S. 168, 173.) Revoking a defendant’s
pro. per. status is justified when the defendant has “ ‘deliberately engage[d] in serious
and obstructionist misconduct,’ ” occurring either inside or outside the courtroom (Butler,
at p. 825, quoting Faretta, supra, 422 U.S. at p. 834, fn. 46), that “seriously threatens the
core integrity of the trial.” (Carson, supra, 35 Cal.4th at pp. 7, 11.)
       In Carson, supra, 35 Cal.4th 1, our state Supreme Court set forth the analysis a
trial court should use in determining whether revoking a defendant’s pro. per. status after
it has been granted is warranted based on “obstructive behavior [that] seriously threatens
the core integrity of the trial.” (Id. at pp. 10-11.) In addition to considering “the nature
of the misconduct and its impact on the trial proceedings,” the court should consider “the
availability and suitability of alternative sanctions” because “[m]isconduct that is more
removed from the trial proceedings, more subject to rectification or correction, or
otherwise less likely to affect the fairness of the trial may not justify complete withdrawal
of the defendant’s right of self-representation.” (Id. at p. 10.) The court should also
consider “whether the defendant has been warned that particular misconduct will result in
termination of [pro. per.] status.” (Ibid.) “[W]hether the defendant has ‘intentionally

10
   Doss also claims that he was denied due process when his pro. per. status was revoked
because the trial court relied on inadmissible hearsay. We need not address this argument
in light of our conclusion that the court applied the wrong legal standard.

                                              8
sought to disrupt and delay his trial’ ” is also a relevant consideration but, ultimately, the
key consideration is “the effect of the misconduct on the trial proceedings, not the
defendant’s purpose.” (Id. at pp. 10-11.)
       A defendant’s right to self-representation under Faretta, supra, 422 U.S. 806 is
atypical in that, unlike many other rights, its violation cannot be excused even if the
defendant suffered no prejudice. In McKaskle v. Wiggins, supra, 465 U.S. 168, the
United States Supreme Court observed that the denial of the right to self-representation
“is not amenable to ‘harmless error’ analysis” because the right is one “that when
exercised usually increases the likelihood of a trial outcome unfavorable to the
defendant.” (Id. at p. 177, fn. 8; see also People v. Joseph (1983) 34 Cal.3d 936, 946
[holding that Faretta error is reversible per se because “[a]ny rule which purported to
assess the quality of a would-be Faretta accused’s representation by the harmless error
standard would inevitably erode the pro se right itself” and “would require an impossibly
speculative comparison between the accused’s undisclosed pro se strategy and that of
counsel”].)
       Applying these legal standards, we conclude that in revoking Doss’s pro. per.
status the trial court failed to apply the correct legal standard, which is that set forth in
Carson, supra, 35 Cal.4th 1. The court’s reliance on Wilson, supra, 21 Cal.3d 816 was
misplaced because that case only involved the restriction of pro. per. privileges. In
Wilson, the defendant sought a writ of mandate after the trial court limited his pro. per.
privileges. (Id. at pp. 819-820.) In holding that the defendant was denied due process
when his pro. per. privileges were restricted, our state Supreme Court “conclude[d] that
violation of jail rules and/or a demonstrable necessity for administrative segregation of a
defendant who would otherwise constitute a threat to jail security” might justify
“restriction or termination” of pro. per. privileges, reasoning that “a pro. per. inmate
should not be relieved of a disciplinary punishment solely because the punishment might
interfere with the exercise of his pro. per. privileges.” (Id. at pp. 821-822, 824.)
       In contrast, even where a defendant is “an obvious security risk and safety
precautions [are] justified both in the jail and the courtroom,” such considerations do not

                                               9
necessarily justify revoking pro. per. status entirely as opposed to merely restricting pro.
per. privileges.11 (Butler, supra, 47 Cal.4th at p. 826.) If a defendant’s out-of-court
misconduct is unrelated to pro. per. status or privileges, the misconduct may not justify
revoking pro. per. status because the appointment of counsel does not lessen the risks
inherent in the defendant’s need to “be housed in . . . jail, transported to and from court,
and in attendance for his trial.” (Ibid.) Butler declined to decide whether out-of-court
misconduct unrelated to a defendant’s pro. per. status can ever justify revoking that status
because the trial court in that case “ultimately . . . did not rely on that ground.” (Ibid.)
Similarly, we need not decide here whether Doss’s out-of-court misconduct unrelated to
his pro. per. status could have justified revoking that status because the trial court did not
rely on that ground. Although the court repeatedly referred to security concerns,
including the safety of jail personnel and other inmates, in revoking Doss’s status, it
recognized that “[t]he security risks [weren’t] . . . heightened by [Doss’s] pro per status”
and specifically stated that those risks were not the reason for revoking his pro. per.
status.
          Instead, the trial court ultimately relied on the finding that Doss had “abused [his]
pro per privileges.” The Attorney General argues this was an “amply supported
ground[]” for revoking Doss’s pro. per. status, pointing to Doss’s intimidation of Doe,
use of pro. per. calls for improper purposes, and violent response to not being permitted
pro. per. calls, as well as to the finding in another case that Doss had abused his
privileges to attempt to delay trial. We agree that at least some of this conduct may have
justified a revocation of pro. per. status. (See, e.g., Carson, supra, 35 Cal.4th at pp. 9-10
[witness intimidation is “[o]ne form of serious and obstructionist misconduct” that may
justify revocation].) But the court evaluated Doss’s misconduct under Wilson, supra,

11
  The appropriateness of restricting pro. per. privileges does not itself justify revocation
of pro. per. status. “Restrictions on pro. per. privileges in custody . . . have never been
deemed a justification for depriving inmates of the right to represent themselves,”
because “while self-represented inmates may not be deprived of all means of preparing a
defense, the Constitution does not require personal access to legal resources.” (Butler,
supra, 47 Cal.4th at p. 827, italics in original.)

                                                10
21 Cal.3d 816, which allows pro. per. privileges to be revoked based on out-of-court
misconduct without regard to the misconduct’s effect on the court proceedings. As a
result, the court never determined that Doss’s behavior constituted “ ‘serious and
obstructionist misconduct’ ” (Butler, supra, 47 Cal.4th at p. 825) that “seriously
threaten[ed] the core integrity of the trial,” and we cannot defer to its exercise of
discretion under the wrong legal standard.12 (Carson, supra, 35 Cal.4th at p. 11.)
       We are also unable to affirm the ruling because the trial court failed to adequately
consider “the availability and suitability of alternative sanctions.” (Carson, supra,
35 Cal.4th at p. 10.) The Attorney General argues that the court satisfied Carson by
“considering merely revoking [Doss]’s pro. per. privileges, while maintaining his pro.
per. status.” (Italics omitted.) Even if we inferred from the court’s references to
privileges that the court considered their wholesale revocation as an alternative, this did
not discharge Carson’s requirement. Almost all the out-of-court misconduct related to
Doss’s pro. per. status involved his pro. per. telephone privileges, but the court never
considered the possibility of revoking or limiting only those privileges. Indeed, even if
the only issue before the court had been whether to revoke Doss’s pro. per. privileges
instead of his status, it would still have been required to choose “the appropriate
disciplinary sanction . . . with a view to that which is least burdensome on the exercise of
the privileges and yet still permits meaningful sanction.” (Wilson, supra, 21 Cal.3d at
p. 825, fn. 8.) There is no indication in the record that the court sufficiently considered
whether more limited sanctions would effectively address Doss’s out-of-court
misconduct.

12
   For similar reasons, we cannot accept the Attorney General’s argument that “the trial
court’s personal observation of [Doss]’s disruptive behavior in its court” justified
revocation. First, the trial court did not rely on this ground in ruling. Second, we cannot
presume it found any such behavior to meet the applicable Carson, supra, 35 Cal.4th 1
standard for revoking pro. per. status since it used the inapplicable Wilson, supra,
21 Cal.3d 816 standard.

                                              11
       C.       Doss Is Not Necessarily Entitled to a New Trial.
       Having concluded that Doss’s pro. per. status was improperly revoked, we turn to
consider the proper disposition of this appeal. In doing so, we recognize, as we discussed
earlier, that the trial court’s improper revocation of pro. per. status is reversible per se.
(See McKaskle v. Wiggins, supra, 465 U.S. at p. 177, fn. 8; Butler, supra, 47 Cal.4th at
pp. 824-825.)
       But just because we must reverse without regard to prejudice does not mean Doss
is necessarily entitled to a new trial. It is distinctly possible that Doss’s pro. per. status
was and is revocable under the proper legal standard. In an analogous situation, the
Carson court concluded that the record before it was insufficient to permit it to determine
whether revocation of the defendant’s pro. per. status had been justified. (Carson, supra,
35 Cal.4th at p. 13.) It then reversed the judgment and remanded “for a hearing in
accordance with [the] opinion,” directing the judgment to be reinstated if the trial court
concluded that the “defendant’s Faretta rights were properly terminated” and a new trial
to be ordered “[i]f the trial court determine[d the] defendant’s self-representation should
not have been terminated.” (Id. at p. 14.) We likewise conclude that remand is
appropriate to permit the trial court to determine in the first instance whether Doss’s
conduct meets Carson’s standard for revocation.
       We also conclude that the trial court is not limited to considering only evidence
that existed at the time it originally revoked Doss’s pro. per. status. The record reveals
incidents that happened after the court’s ruling that might also justify disallowing Doss to
represent himself, including an extremely troubling instance in which he threatened to
kill a witness before that witness testified at trial in this case. Although we conclude that
we, as a reviewing court, may not rely on postruling conduct to affirm the trial court’s
improper revocation of Doss’s pro. per. status,13 nothing in our decision should be
construed to preclude the trial court from considering such conduct on remand. The

13
  On our request, the parties submitted supplemental briefing on a question we presented
about Doss’s postruling conduct. The Attorney General effectively, and we believe
properly, discouraged us from relying on that conduct to affirm the trial court’s ruling.

                                               12
ultimate question that it must answer is whether Doss’s self-representation would
threaten the core integrity of a new trial, not whether his pro. per. status was properly
revoked over two years ago.14 If the court finds that Doss is not entitled to represent
himself now, it would be pointless for it to order a new trial at which he would be
represented by counsel as he was in his last trial.
                                             III.
                                        DISPOSITION
       The judgment is reversed. The matter is remanded to the trial court for a hearing
to determine whether Doss should be permitted to represent himself in a new trial and, if
so, to what extent his pro. per. privileges should be restricted. If the court determines that
Doss is not entitled to represent himself, the judgment should be reinstated. If the court
determines that Doss is entitled to represent himself, he may do so in a new trial.
(Carson, supra, 35 Cal.4th at p. 14.)

14
  We caution that Doss’s mere expressions of frustration about the erroneous revocation
of his pro. per. status cannot justify a renewed denial of his right to represent himself.
(See Moon v. Superior Court (2005) 134 Cal.App.4th 1521, 1530-1531 [“We can hardly
deny a party a constitutional right and then hold it against him that such denial prompted
outrage and frustration”].)

                                             13
                                                 _________________________
                                                 Humes, J.*

We concur:

_________________________
Reardon, Acting P.J.

_________________________
Rivera, J.

People v. Doss (A137203)

* Presiding Justice of the Court of Appeal, First Appellate District, Division One,
assigned by the Chief Justice pursuant to article VI, section 6 of the California
Constitution.

                                            14
Trial Court:              Contra Costa County Superior Court

Trial Judge:              Honorable Nancy Stark
                          Honorable John Laettner
                          Honorable Leslie Landau

Counsel for Appellant:    Candace Hale, under appointment by the First District
                          Appellate Project

Counsel for Respondent:   Kamala D. Harris, Attorney General, Gerald A. Engler,
                          Senior Assistant Attorney General, Catherine A. Rivlin,
                          Supervising Deputy Attorney General, David H. Rose,
                          Deputy Attorney General

                                   15


119 Mich. App. 277 (1982)
326 N.W.2d 479
VAN ETTEN
v.
MANUFACTURERS NATIONAL BANK OF DETROIT
Docket No. 56625.
Michigan Court of Appeals.
Decided September 7, 1982.
Fildew, Hinks, Gilbride, Miller & Todd (by Jonathan N. Wayman), for plaintiff.
Dykema, Gossett, Spencer, Goodnow & Trigg, for Manufacturers National Bank of Detroit.
Bodman, Longley & Dahling (by Louis F. Dahling and Charles N. Raimi), for Joseph Freedman.
Before: BEASLEY, P.J., and D.C. RILEY and P.J. MARUTIAK,[*] JJ.
BEASLEY, P.J.
Plaintiff-appellant, Annie Laurine *279 Dodge Van Etten, appeals by leave granted from a circuit court order granting defendants' motion to remove to the probate court plaintiff's chancery proceeding to reform a 1940 settlement agreement on the basis that the issues sought to be raised are ancillary to the pending probate proceedings. Thus, we are called upon to determine whether, under the Revised Probate Code,[1] the probate court possesses equity jurisdiction to reform a settlement contract and to order restitution of unpaid amounts when the matter is ancillary to the termination distribution of a testamentary trust.
The testator, John F. Dodge, who died in 1920, created a testamentary trust in which four of his children, Winifred Dodge Seyburn, Isabel Dodge Sloan, Daniel George Dodge, and Frances Dodge Johnson Van Lennep, would receive trust income during their lifetimes and, after the death of the last surviving child, the corpus of the trust was to be distributed to the heirs of his named children.
On August 15, 1938, at age 21, Daniel George Dodge drowned while on his honeymoon. His surviving wife, plaintiff, Annie Laurine Dodge (Van Etten), was then still in her teens. She elected to take her statutory share of his estate in lieu of taking under his will. On July 9, 1940, she entered into a so-called Corpus Purchase Agreement and an assignment of corpus with her three sisters-in-law, Winifred Dodge Seyburn, Isabel Dodge Sloan, and Frances Dodge Johnson (later Van Lennep), who were the three surviving life beneficiaries of the trust. Under this agreement, they paid plaintiff $1.25 million for:
"All right, title and interest which First Party [Annie *280 Laurine Dodge] may now or at any time hereafter, or upon the happening of any contingencies, have or become entitled to by virtue of being widow and heir of Daniel George Dodge, deceased, or for any other reason or upon any claim whatsoever, in or to any of the principal or corpus of the Estate now held in the residuary Trust under Paragraph 20, sub-paragraph 14(h), of the Will of John F. Dodge, deceased, * * *."
On January 3, 1980, when Winifred Dodge Seyburn, the last surviving child, died, the Dodge trust terminated by its terms. Shortly thereafter, proceedings were commenced in the Wayne County Probate Court for distribution of the trust corpus.
On August 8, 1980, prior to decision by the probate court determining the distribution of the Dodge trust, plaintiff filed a complaint in the Wayne County Circuit Court seeking reformation of the 1940 corpus purchase agreement on the basis of mutual mistake regarding the nature of the interest which plaintiff conveyed to the then three surviving daughters of John F. Dodge.
Defendants filed a motion to dismiss the complaint on the ground that the circuit court lacked subject matter jurisdiction. On October 31, 1980, pursuant to the Revised Probate Code,[2] the trial judge found that the probate court had either exclusive or concurrent jurisdiction of the matter. Additionally, the trial judge held that the probate court was empowered to grant the equitable relief sought by plaintiff. Thus, the matter was removed to the Wayne County Probate Court to be consolidated with the pending Dodge trust proceedings.[3] From this order, plaintiff appeals by leave granted.
*281 On appeal, plaintiff claims that the probate court is not vested with equitable power to reform a written instrument and, thus, the trial court erred in removing the action to the probate court.
The Michigan Constitution vests original jurisdiction in the circuit court in all matters not prohibited by law.[4] In MCL 600.601; MSA 27A.601, the jurisdiction of the circuit court is set forth:
"Circuit courts have the power and jurisdiction
"(1) possessed by courts of record at the common law, as altered by the constitution and laws of this state and the rules of the supreme court, and
"(2) possessed by courts and judges in chancery in England on March 1, 1847, as altered by the constitution and laws of this state and the rules of the supreme court, and
"(3) prescribed by rule of the supreme court."
The jurisdiction and power of the probate court is set forth in MCL 600.841; MSA 27A.841 as follows:
"The probate court has jurisdiction and power as follows:
"(a) As conferred upon it under the revised probate code.
"(b) As conferred upon it under chapters 10, 11 and 12a of Act No. 288 of the Public Acts of 1939, as amended, being sections 710.21 to 712a.28 of the Michigan Compiled Laws.
"(c) As conferred upon it under Act No. 258 of the Public Acts of 1974, as amended, being sections 330.1001 to 330.2106 of the Michigan Compiled Laws.
"(d) As conferred upon it under this act.
"(e) As conferred upon it pursuant to any other law or compact."
*282 In Grady v Hughes,[5] the Supreme Court discussed the probate court's jurisdiction:
"The probate court derives none of its jurisdiction or power from the common law, but must find the warrant for all of its doings in the statute. Its jurisdiction, powers, and duties are prescribed by law."
In Johnson v Douglas,[6] it was specifically stated that probate courts do not possess equitable powers:
"Defendant questions the jurisdiction of a court of equity over the claims presented in the probate court and sought to be litigated here. There is no question that the probate court has exclusive jurisdiction over the probate of estates, except where the interposition of chancery is necessary for some auxiliary purpose. Powell v Pennock, 181 Mich 588 [148 NW 430 (1914)]. Equity has jurisdiction over suits for specific performance of contracts concerning land, especially where there is a dispute in the amount and an accounting is necessary between the parties before specific performance may be decreed. Though the statute, 3 Comp Laws 1929, § 15673, provides for the conveyance by an executor or administrator of land sold on land contract upon compliance with the contract, the probate court is not an appropriate forum for the determination of disputed questions of fact in relation to the amount due upon the contract. Such questions are cognizable by a court of equity. Dakin v Dakin, 97 Mich 284 [56 NW 562 (1893)]."
An action to reform a written contract is not maintainable in an action at law. Equity courts *283 have exclusive jurisdiction in instances where a party seeks reformation of a written instrument.[7] Thus, unless the Revised Probate Code provides probate courts with general equitable powers, the circuit court is the only forum which can entertain an action to reform a written instrument.
The Revised Probate Code vests the probate court with exclusive jurisdiction in the following matters:
"(a) Matters relating to the settlement of the estate of a deceased person, whether testate or intestate, who was at the time of death domiciled in the county or was at the time of death domiciled without the state leaving an estate within the county to be administered.
"(b) Trusts and trustees in the execution of wills and administration of estates of deceased persons.
"(c) Proceedings concerning the internal affairs of trusts including proceedings concerning the administration and distribution of trusts and the declaration of rights or the determination of other matters involving trustees and beneficiaries of trusts, including proceedings to:
"(i) Appoint or remove a trustee.
"(ii) Review the fees of a trustee.
"(iii) Review and settle interim or final accounts.
"(iv) Ascertain beneficiaries.
"(v) Determine any question arising in the administration or distribution of any trust, including questions of construction of wills and trusts; instruct trustees, and determine relative thereto the existence or nonexistence of an immunity, power, privilege, duty, or right.
"(vi) Release registration of a trust.
"(d) Appointment of a guardian, limited guardian, or conservator in cases prescribed by law, resolution of any contested matter in respect to the estate or ward, and settlement of the estate."[8]
*284 When ancillary to the settlement of an estate or trust, the probate court has concurrent jurisdiction of the following:
"(a) To determine the validity of and resolve claims involving title to real and personal property.
"(b) To authorize partition of property.
"(c) To authorize specific performance of a contract in a joint or mutual will or of a contract to leave property by will.
"(d) To ascertain survivorship of parties.
"(e) To bar a mentally incompetent or minor wife from her dower right in the real estate of her living husband as provided in section 2931 of Act No. 236 of the Public Acts of 1961, being section 600.2931 of the Michigan Compiled Laws.
"(f) To determine cy-pres, when an estate or a trust of a decedent is involved, over gifts, grants, bequests and devises in trust or otherwise to religious, educational, charitable, or benevolent uses as provided in Act No. 280 of the Public Acts of 1915, as amended, being sections 554.351 to 554.353 of the Michigan Compiled Laws.
"(g) To construe a will or determine heirs.
"(h) To hear and decide an action or proceeding against distributees of an estate fiduciary to enforce liability arising because the estate was liable upon some claim or demand before distribution of the estate.
"(i) To require an accounting of a fiduciary.
"(j) To determine an action or proceeding of a constructive trust.
"(k) To order, when requested by an interested person, any instruction or direction to a fiduciary under this act regarding this act or any applicable Michigan law affecting an estate within the jurisdiction of the court.
"(2) To determine an action or proceeding involving settlement of an inter vivos trust as provided in Act No. 185 of the Public Acts of 1966, being sections 555.81 to 555.84 of the Michigan Compiled Laws."[9]
*285 On appeal, plaintiff contends that the Legislature, in enacting the Revised Probate Code, did not intend nor provide for the probate court to have general chancery jurisdiction in all matters ancillary to the settlement of an estate or trust.
Defendants assert that plaintiff's complaint for reformation falls within the jurisdiction of the probate court, either under the court's exclusive jurisdiction, MCL 700.21(c); MSA 27.5021(c), as a matter concerning the distribution of trusts or the determination of beneficiaries, or under the court's concurrent jurisdiction, MCL 700.22(1)(a); MSA 27.5022(1)(a), to determine the validity of claims involving title to real and personal property.
Equity has been defined as a system of jurisprudence in which substantial justice may be attained in particular cases where the customary forms of ordinary law seem to be insufficient.[10] Justice Joseph Story discussed the design of equity courts in the following passage:
"Yet it is by no means uncommon to represent that the peculiar duty of a Court of Equity is to supply the defects of the common law, and next, to correct its rigor or injustice. Lord Kaims avows this doctrine in various places and in language singularly bold. `It appears now clearly,' says he, `that a Court of Equity commences at the limits of the common law, and enforces benevolence where the law of nature makes it our duty. And thus a Court of Equity, accompanying the law of nature, in its general refinements enforces every natural duty that is not provided for at common law.' And in another place he adds, a Court of Equity boldly undertakes `to correct or mitigate the rigor, and what in a proper sense may be termed the injustice of the common law.'" (Footnotes omitted.)[11]
*286 The origin of equity is well summarized by the following text:
"`Equity', as the term is used in American jurisprudence, may be defined as that portion of remedial justice which was formerly administered in England by the High Court of Chancery as it has been extended, limited, and modified in the United States by statute and judicial construction. English equity as a system administered by a separate tribunal originated at an early date as the result of the inability, and to some extent of the unwillingness, of the common-law courts to meet all the requirements of justice by granting relief in all proper cases. Following a struggle for supremacy between it and other courts, lasting for an extended period, the prerogatives of the Court of Chancery were finally confirmed and there developed therein a distinct system of practice, and a distinct system of substantive jurisprudence, known as `equity'." (Footnotes omitted.)[12]
In Michigan, equity jurisdiction has been lodged in the circuit courts at least since 1846.[13] As stated in Youngs v West,[14] equity jurisprudence has developed its own precedents and doctrines:
"`Broadly speaking the sound discretion of the court is the controlling guide of judicial action in every phase of a suit in equity. So the granting of equitable relief is ordinarily a matter of grace, and whether a court of equity will exercise its jurisdiction, and the propriety of affording equitable relief, rests in the sound discretion of the court, to be exercised according to the circumstances and exigencies of each particular case. Of course, this discretion is not an arbitrary one, but must be exercised in accordance with the fixed principles and *287 precedents of equity jurisprudence, and in accordance with the evidence.' 30 CJS, pp 328, 329."
In enacting the Revised Probate Code, the Legislature did not expressly provide probate courts with general equity jurisdiction whenever a matter involving an equitable issue is ancillary to the settlement of a trust or estate. Rather, MCL 700.22; MSA 27.5022 sets forth particular instances in which the probate court may grant equitable relief, such as authorizing partition of property, authorizing specific performance of a contract contained in a joint or mutual will and requiring an accounting of a fiduciary. Inasmuch as the Revised Probate Code does not furnish the probate court with general equitable powers, it appears that the Legislature did not intend to lodge total equitable jurisdiction in the probate court.
In Stowers v Wolodzko,[15] the Court discussed the applicable rule of statutory construction:
"Michigan has recognized the principal of expressio unius est exclusio alterious  express mention in a statute of one thing implies the exclusion of other similar things. Dave's Place, Inc v Liquor Control Comm, 277 Mich 551 [269 NW 594] (1936); Sebewaing Industries, Inc v Sebewaing, 337 Mich 530 [60 NW2d 444] (1953)."
The general rule concerning a probate court's equitable jurisdiction is embodied in 27 Am Jur 2d, Equity, § 6, p 524:
"Where the court has not been granted general equity powers, being authorized to act as a court of equity only in certain cases and classes of cases, the rule of a strict construction applies, insofar as the ascertainment *288 of the range of jurisdiction is concerned. Consequently, it is necessary for a plaintiff to make it appear affirmatively on the face of his pleading that his case is within the jurisdiction of the court." (Footnotes omitted.)
In applying the foregoing rules, we conclude that the probate court does not have equitable jurisdiction to entertain an action to reform a written instrument.[16] By filing her complaint for reformation and restitution in the Wayne County Circuit Court, plaintiff selected the correct forum. We, therefore, reverse and remand the matter to the Wayne County Circuit Court.
Reversed and remanded.
NOTES
[*]  Circuit judge sitting on the Court of Appeals by assignment.
[1]  MCL 700.1 et seq.; MSA 27.5001 et seq.
[2]  MCL 700.21, 700.22; MSA 27.5021, 27.5022.
[3]  On October 20, 1980, the probate court filed a thorough, carefully drawn opinion directing distribution of the trust corpus, which ruling is now on appeal to this Court.
[4]  Const 1963, art 6, § 13. Article 6, § 15 provides that the probate court's jurisdiction, powers, and duties shall be provided by law.
[5]  64 Mich 540, 545; 31 NW 438 (1887).
[6]  281 Mich 247, 260; 274 NW 780 (1937). Of course, the Legislature may vest the probate court with equitable powers. In re Thayer's Estate, 210 Mich 696; 177 NW 978 (1920); Scholten v Scholten, 238 Mich 679; 214 NW 320 (1927).
[7]  Jensen v Shevitz, 234 Mich 212, 215; 207 NW 823 (1926); 19 Michigan Law & Practice, Reformation of Instruments, § 21, p 446.
[8]  MCL 700.21; MSA 27.5021.
[9]  MCL 700.22; MSA 27.5022.
[10]  27 Am Jur 2d, Equity, § 1, p 516.
[11]  1 Story's Equity Jurisprudence (14th ed), § 16, p 17.
[12]  5 Michigan Law & Practice, Chancery, § 2, p 71.
[13]  RS 1846, title 21, ch 90, § 2, as amended by 1847 PA 23; MCL 600.601(2); MSA 27A.601(2).
[14]  317 Mich 538, 545; 27 NW2d 88 (1947).
[15]  386 Mich 119, 133; 191 NW2d 355 (1971). See, also, 2A Sutherland, Statutory Construction, § 47.23, p 123.
[16]  We are not unmindful that there are some portents that indicate a future merger of probate jurisdiction into the constitutional jurisdiction of the circuit courts. We submit that accomplishing such a result by "bits and pieces", e.g., by moving some chancery cases to probate court, would be doing it in the wrong way and for the wrong reasons.


214 Ga. 478 (1958)
105 S.E.2d 457
WILLIAMS
v.
KWIK SHAKE DISPENSER MANUFACTURING COMPANY.
20207.
Supreme Court of Georgia.
Submitted September 9, 1958.
Decided October 10, 1958.
Howell C. Ravan, for plaintiff in error.
Hicks & Henderson, contra.
HEAD, Justice.
The bill of exceptions assigns as error a judgment of the court sustaining the demurrers of the plaintiff to the defendant's answer and cross-action. Held: *479 The dismissal of a cross-bill or answer is not such a final disposition of a cause as may be reviewed in this court. Code § 6-701, as amended by Ga. L. 1957, pp. 229-232; Knights of the Ku Klux Klan v. Terrell, 155 Ga. 374 (116 S. E. 793); White v. Chisolm, 160 Ga. 177 (127 S. E. 140); Byrd v. Equitable Life Assurance Society, 184 Ga. 178 (190 S. E. 584); Darden v. Roberts, 193 Ga. 637 (19 S. E. 2d 270); Sanders v. Sanders, 212 Ga. 244 (91 S. E. 2d 604); Bowman v. Poole, 212 Ga. 697 (95 S. E. 2d 375). The amendment to the rules of practice and procedure, approved January 19, 1957 (Ga. L. 1957, pp. 224-248), did not repeal or modify the rule that the dismissal of a cross-action on demurrer is not such a final judgment as may be reviewed by direct bill of exceptions.
Writ of error dismissed. All the Justices concur.


413 So.2d 1042 (1982)
Anthony Henry HYDE
v.
STATE of Mississippi.
No. 53424.
Supreme Court of Mississippi.
May 19, 1982.
*1043 Richard W. Hamilton, Pascagoula, for appellant.
Bill Allain, Atty. Gen. by Frankie Walton White, Sp. Asst. Atty. Gen., Jackson, for appellee.
Before WALKER, P.J., and ROY NOBLE LEE and DAN M. LEE, JJ.
DAN M. LEE, Justice, for the Court:
This is an appeal from the Circuit Court of Jackson County wherein Anthony Henry Hyde, defendant/appellant, was indicted, tried and convicted upon a charge of rape. Upon conviction, Hyde was sentenced to a term of twenty-five years in the Mississippi Department of Corrections after the jury failed to affix his punishment at life. We affirm.
On October 23, 1980, appellant and his brother Michael Hyde, drove to 4027 West Pine Street in Moss Point, Mississippi, between 10:00 and 10:30 a.m. According to appellant and his brother, the purpose of this visit was to purchase marijuana from Elliot Lett, the occupant of the house, so appellant would have something to smoke during a bus ride to Chicago.
Appellant parked his automobile in Lett's front yard and then proceeded to the door. The prosecutrix, Lett's 17-year-old live-in companion, answered the door and informed appellant Lett was at school and would not be home until 12:00 p.m. Appellant then left.
Appellant returned to Lett's house alone approximately one hour later. When the prosecutrix told appellant Lett had not returned home, appellant forced his way into the house, wielding a gun. He began ransacking the house asking the prosecutrix where Lett kept his dope. When appellant was unable to find any drugs, he grabbed the prosecutrix. After a brief struggle, the appellant forced himself upon the prosecutrix and raped her.
When Lett arrived home, he found his house in shambles and the prosecutrix crying in the bedroom. Lett took her to his grandmother's house, which was next door, where she bathed, and the police were summoned.
The prosecutrix identified appellant from nine photographs as the person who raped her. An examination at the Singing River Hospital that afternoon revealed that she had recently engaged in sexual intercourse. Hair samples taken from the appellant and the prosecutrix's clothing were compared in the F.B.I. laboratory. All twenty individual characteristics identified in appellant's hair matched the characteristics of the hair taken from the victim's clothing.
Appellant voluntarily surrendered to the police on November 11, 1980, shortly after returning from Chicago. He denied that it was he who raped the prosecutrix.

I. Was the verdict of the jury against the overwhelming weight of the evidence?
In Sadler v. State, 407 So.2d 95 (Miss. 1981), this Court stated:
Among the alleged errors assigned is that the trial court should have sustained Sadler's motion for a new trial on the ground that the jury verdict was not supported by sufficient credible evidence.
Considering the evidence, as we must, in the light most favorable to the state and accepting as true the evidence supporting or tending to support the verdict, with all inferences supportive of the verdict that reasonably may be drawn therefrom, we find no merit in this contention. Glass v. State, 278 So.2d 384 (Miss. 1973). In Spikes v. State, 302 So.2d 250 (Miss. 1974), this Court said:
"On appeal, in this situation, in passing upon the sufficiency of evidence to support a verdict, this Court must accept as *1044 true the evidence which supports the verdict. Murphree v. State, 228 So.2d 599 (Miss. 1969). [302 So.2d at 251]."
The resolution of such conflicts as there were in the evidence in this case, was peculiarly for the jury. In Hankins v. State, 288 So.2d 866 (Miss. 1974), it was said:
"In Evans v. State, 159 Miss. 561, 132 So. 563 (1931), we stated:
`We invite the attention of the bar to the fact that we do not reverse criminal cases where there is a straight issue of fact, or a conflict in the facts; juries are impaneled for the very purpose of passing upon such questions of disputed fact, and we do not intend to invade the province and prerogative of the jury. (159 Miss. at 566, 132 So. at 564)'" (407 So.2d at 97)
The evidence in the case at bar was conflicting. The state's evidence tended to prove that appellant committed the rape, while he denied he committed the offense. The testimony of the prosecutrix was corroborated by the testimony of Vicki Lowery who saw appellant at Lett's house on two occasions on the day the rape occurred, and also by Elliot Lett, Kenneth Smith and detective Gary Jones' testimony as to the condition of the house following the rape. The prosecutrix positively identified appellant as her attacker. The rape examination revealed scratches and scrapes around the prosecutrix's neck as well as evidence of recent sexual intercourse. Moreover, hair samples taken from the prosecutrix's clothes compared remarkably with hair samples taken from appellant's head.
The conflict in the evidence was for the jury's resolution. The evidence was more than sufficient to support the verdict of the jury.

II. Did the trial court err in failing to grant a mistrial when the district attorney caused appellant to display the condition of his teeth to the jury?
Appellant, during cross-examination, was asked by the district attorney to step down from the witness stand and display the condition of his teeth to the jury. On appeal, he argues the effect of this action was to bolster the state's case and prejudiced the jury against him due to the fact that there was no evidence before the jury as to the condition of the assailant's teeth.
In King v. State, 230 So.2d 209 (Miss. 1970), which involved felonious possession of narcotic drugs, defendant, after taking the witness stand, was compelled to exhibit his arm to the jury, showing festered bumps on his arm. We stated:
We are of the opinion that the defendant was not prejudiced by being required to exhibit his arm to the jury while he was on the witness stand testifying in his own defense. The appellant voluntarily took the witness stand and, being a witness, he was required to answer questions on cross examination related to the issue. McCormick on Evidence § 131, page 274 (1954); 8 Wigmore on Evidence § 2265 (McNaughton rev. 1961), page 386; Tyson v. State, 237 Miss. 149, 112 So.2d 563 (1959); People v. Widener, 220 Cal. App.2d 826, 34 Cal. Rptr. 130 (1963). (230 So.2d at 211-12).
Appellant having voluntarily taken the witness stand in his own defense was not prejudiced by being required to exhibit the condition of his teeth to the jury.
Based on the foregoing, this case is affirmed.
AFFIRMED.
PATTERSON, C.J., SUGG and WALKER, P. JJ., and BROOM, ROY NOBLE LEE, BOWLING, HAWKINS and DARDEN, JJ., concur.


762 F.2d 1006
Unpublished DispositionNOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.FRED M. CHAMBERLAIN, PETITIONER-APPELLANT,v.WILLIAM ABSHIRE, SUPERINTENDENT, RESPONDENT-APPELLEE.
NO. 84-1562
United States Court of Appeals, Sixth Circuit.
4/1/85
ORDER

1
BEFORE: ENGEL and KRUPANSKY, Circuit Judges; and HULL, Chief District Judge.*

2
Petitioner appeals the district court's February 29, 1984 order denying his habeas corpus petition brought under 28 U.S.C. Sec. 2254.  Petitioner has moved for appointment of counsel on appeal.  The case has been referred to a panel of the Court pursuant to Sixth Circuit Rule 9(a).  Upon examination of petitioner's brief and the record, the panel agrees unanimously that oral argument is not needed.  Rule 34(a), Federal Rules of Appellate Procedure.

3
Petitioner, a Michigan prisoner, alleged in his habeas corpus petition that the Michigan Supreme Court deprived him of his right to appeal by requiring that he waive counsel before he would be afforded his trial transcripts.  This claim is based on the following order, dated July 28, 1965, by the Michigan Supreme Court:

4
On order of the Court, the motion for trial transcript is considered and GRANTED.  IT IS ORDERED that the matter is remanded to the Circuit Court of Macomb County to determine the question of indigency and, if found, to furnish such portions of the record as defendant may request, provided defendant, having previously declined the assistance of court-appointed counsel, executes a written waiver of any rights he might now or hereafter claim to have had to the appointment of counsel for post-conviction and appellate proceedings as provided in GCR 1963, 785.4(2).

5
The district court originally denied the petition and petitioner appealed that order.  This Court reversed and remanded for development of a record.  Chamberian v. Abshire, No. 79-1637 (6th Cir.  May 1, 1980).  On remand, the district court appointed counsel to represent petitioner and directed respondent to file a response.

6
The documents submitted by the parties reveal that petitioner was tried on a murder charge but the jury was unable to return a verdict.  Petitioner was tried again and convicted in 1962.  He did not appeal this conviction.  Petitioner subsequently attempted to obtain a trial transcript, resulting in the 1965 Michigan Supreme Court order which is the basis of the habeas corpus petition.  In 1968, petitioner moved for and was granted a delayed appeal by the Michigan Court of Appeals.  He was represented by counsel who had access to the transcript of the second trial.  The Michigan Court of Appeals affirmed petitioner's conviction on the merits.  The Michigan Supreme Court denied leave to appeal and the United States Supreme Court denied certiorari.

7
We find that the district court did not err in denying the petition.  Petitioner was not entitled to habeas relief on the grounds that he was denied the right to appeal when he in fact had a belated appeal in which he was represented by counsel.  See Johnson v. Wyrick, 381 F.Supp. 747 (W.D. Mo.), aff'd, 508 F.2d 123 (8th Cir. 1974); United States ex rel. Hayes v. Johnson, 330 F.Supp. 1115 (E.D. Pa. 1971); Via v. Peyton, 306 F.Supp. 1153 (W.D. Va. 1969); Johnson v. Brierley, 301 F.Supp. 1002 (W.D. Pa. 1969), aff'd, 424 F.2d 552 (3d Cir. 1970).  Petitioner argues that the appeal was ineffective because his counsel did not have the transcript from the first trial.  The only issue in the appeal arguably requiring the transcript from the first trial was that petitioner's trial counsel was ineffective.  However, after the petitioner had been afforded a second trial, the conduct of counsel in his first trial was irrelevant.  See Johnson v. Wyrick, supra, 381 F.Supp. at 759.

8
Petitioner's argument that he was denied a speedy appeal is also without merit.  Although habeas corpus relief may be available because of a state's unjustified delay in processing an appeal, Doescher v. Estelle, 616 F.2d 205 (5th Cir. 1980); Way v. Crouse, 421 F.2d 145 (10th Cir. 1970), petitioner does not allege that his appeal was delayed after it was filed.  Also, petitioner does not show any prejudice from the delay, especially since his conviction was affirmed on appeal.  See Doescher v. Estelle, supra; United States ex rel. Hayes v. Johnston, supra.

9
The district court in its opinion also held that petitioner's counsel was effective during his second trial.  This issue was not raised or briefed by the parties below.  Also, petitioner does not challenge the district court's ruling on this issue in his informal brief.  Since petitioner did not raise this issue on appeal, and it was neither briefed nor argued below, it should not be considered by this Court.  See Hershinow v. Bonamarte, 735 F.2d 264 (7th Cir. 1984); McGruder v. Necaise, 733 F.2d 1146 (5th Cir. 1984); Deane Hill Country Club, Inc. v. City of Knoxville, 379 F.2d 321 (6th Cir. 1967).

10
Accordingly, it is ORDERED that the petitioner's motion for appointment of counsel is denied and the district court's judgment is affirmed.  Sixth Circuit Rule 9(d)(3).

*
 The Honorable Thomas G. Hull, Chief U.S. District Judge for the Eastern District of Tennessee, sitting by designation


165 F.2d 241 (1947)
SHELTON
v.
UNITED STATES.
No. 9515.
United States Court of Appeals District of Columbia.
Argued November 17, 1947.
Decided December 22, 1947.
*242 Mr. Jay Paul Shelton, appellant, pro se.
Mr. John D. Lane, Assistant United States Attorney, of Washington, D. C., with whom Mr. George Morris Fay, United States Attorney, and Mr. John P. Burke, Assistant United States Attorney, both of Washington, D. C., were on the brief, for appellee. Mr. Sidney S. Sachs, Assistant United States Attorney, of Washington, D. C., also entered an appearance for appellee.
Mr. John H. Burnett, of Washington, D. C., appointed by this court as amicus curiae, urged reversal.
Before GRONER, Chief Justice, and WILBUR K. MILLER and PRETTYMAN, Associate Justices.
PRETTYMAN, Associate Justice.
Appellant was indicted, tried by a jury, convicted, and sentenced to serve one to three years, for perjury.[1] The prosecution was in the name of the United States by the United States Attorney, and the trial was by the District Court of the United States for the District of Columbia. The indictment was in two counts. The facts alleged were that the defendant had secured from the Department of Vehicles and Traffic of the District of Columbia a certificate of title for a Chevrolet automobile; that later he surrendered the original certificate as burned and mutilated and secured a duplicate certificate; that still later he filed, on a form furnished by the Director of Vehicles and Traffic, an application for a second duplicate certificate of title; that this application was under oath; that the defendant answered "Lost" to the requirement on the application that he "State reason for requiring duplicate"; and that defendant entered "No" on the line requiring information as to "Existing liens, chattel mortgages, unpaid balances, etc." The first count of the indictment was that the first of these two statements was false, and known by defendant to have been false, because the first duplicate certificate had not been lost. The second count of the indictment was that the second of these two statements was false, and known by defendant to have been false, because there were liens, chattel mortgages, and unpaid bills existing on the automobile. Both counts, as we have said, were for perjury.
The defendant moved to merge the two counts. At first the United States Attorney agreed to the merger, saying that the various matters charged might be considered alternate ways of committing one offense. But when the case was called for trial, he withdrew his consent, suggesting that different questions of law might arise as to the two alleged false statements, and saying that he wanted a verdict on each statement, because he foresaw that if there were one verdict of guilty, this court upon appeal could not tell which statement the jury had found to be false. Nevertheless, the counts were merged, and upon the trial there was one verdict of "guilty in manner and form as charged in the indictment", and one sentence of one to three years.
Appellant-defendant's first point is that the offenses described in the indictment did not constitute the crime of perjury but at most were misdemeanors to be prosecuted by the Corporation Counsel in the Municipal Court for the District of Columbia.
Three statutes are involved. The pertinent words[2] of the District of Columbia perjury statute are:
"Every person who, having taken an oath, in any case in which the law authorized such oath, that any written declaration by him subscribed is true, wilfully and contrary to such oath states or subscribes any material matter which he does not believe to be true, shall be guilty of perjury; and any person convicted of perjury shall be punished by imprisonment in the penitentiary for not less than two nor more than ten years."[3]
*243 Four subsections under Section 6[4] of the District of Columbia Traffic Act[5] are pertinent. Subsection (c) provides: "The Commissioners of the District of Columbia are authorized to make reasonable regulations in respect to titling, retitling, [etc., of] motor vehicles." Subsection (d) provides:
"The commissioners shall not register any motor vehicle unless and until the owner thereof shall make application in the form prescribed by the commissioners, under oath, and be granted an official certificate of title for such vehicle. Any individual violating any provision of this subsection or any regulations promulgated thereunder shall be fined not more than $1,000 or imprisoned not more than one year, or both."
Subsection (e) provides: "The commissioners may in the administration of any provision of the Traffic Acts, exercise any power or perform any duty conferred on them by the Traffic Acts through such officers and agents of the District as the commissioners may designate." Subsection (i) provides: "All prosecutions for violations of provisions of the Traffic Acts, excepting section 11 thereof, or regulations made and promulgated under the authority of said Acts shall be in the police court of the District of Columbia upon information filed by the corporation counsel of the District of Columbia or any of his assistants."
The third pertinent statute is the Act of July 2, 1940, known as the Motor Vehicle Lien Law,[6] Section 6 of which provides: "Applications for certificates, in addition to all other matters which may be required by law, shall show under oath whether or not there are any liens against the motor vehicle". Section 14 of the same Act provides:
"Any person intentionally making a false statement with respect to liens in an application for a certificate, or willfully violating any of the provisions of this Act, shall upon conviction be punished by a fine of not more than $500 or be imprisoned for not more than one year, or both. Prosecutions for violations of this Act shall be by the corporation counsel of the District of Columbia or any of his assistants, in the name of the District of Columbia."
If an application for a duplicate certificate is an application for a certificate, within the meaning of the last-quoted section of the Lien Act, there is no escape from the conclusion that in so far as the defendant's false statement as to liens is concerned, the maximum sentence was a fine of $500 and imprisonment for one year, and the prosecution was required to be by the Corporation Counsel in the name of the District of Columbia.
The Lien Act, generally throughout its provisions, speaks only of a "certificate", which it defines as a certificate of title, but in at least two places it specifically mentions a duplicate; in Section 6 appears "an application for a certificate * * *, or on the application for a duplicate", and in Section 11 appears "where the certificate * * * has been lost or destroyed and a duplicate certificate issued". This circumstance gives rise to some question whether a "certificate" and a "duplicate certificate" were deemed by Congress to be two different things, and whether "duplicate certificate" was used whenever a duplicate was meant. But careful reading of the whole Act shows that it cannot be construed that way. Only the word "certificate" appears in the provisions as to unentered liens (Section 2), the entry of liens on certificates (Section 7), the delivery of certificates (Section 6), the assignment of liens (Section 8), the surrender of certificates for liens (Section 9), the possession of the certificate (Section 10), and the recordation of satisfied liens (Section 11). But obviously those provisions must necessarily apply to duplicates as well as to original certificates. The purpose of the Act is a current one, the recording, releasing, etc., of liens being a current, changing matter, and not merely an initial static one. This purpose obviously applies to duplicates as it *244 does to originals. It would be ridiculous to conclude that these elaborate provisions apply so long as the original certificate is preserved but not thereafter when a duplicate is the outstanding authentic evidence of title. We think that the above-quoted provisions of Sections 6 and 14 of the Lien Act apply to applications for duplicate certificates just as do the provisions of all the other sections of the Act.
The foregoing being true, the next question is whether the defendant's false oath as to liens may be prosecuted and punished under the general perjury statute. It is clearly within the statutory definition of perjury in that statute, quoted above. But there can be no question about the general rule that, absent extraordinary results of such construction, a specific later statute, rather than an earlier general one, applies to a given transaction described by both acts,[7] i. e., generally by the earlier act and specifically by the later.
There is no room in the present problem for the application of the rule of the Noveck case,[8] urged upon us here. In that decision, as in a line of cases before and since, it was held that the making of a false oath and the using of it in an attempt to defeat an income tax are two separate offenses. Hence, under those two statutes, when a person both makes a false oath and then uses it in an attempt to defeat the income tax, he may be indicted, convicted, and punished for either or both of the two offenses. It is argued that under that rule, when the present defendant made the false oath he violated the perjury statute and not the Lien Law. But the local statute in respect to false statements as to liens specifically applies to the making of the false statement. The making is the offense, and the making is required to be under oath. Thus, the prescriptions in Section 14 necessarily apply to the making of false statements under oath. Congress certainly did not require that applications be under oath and at the same time provide severe penalties for making false applications not under oath.
The offense thus described in the Lien Act is a particular kind of perjury.[9] Congress has provided a specific penalty, and a specific prosecutor, for the sort of perjury which consists of a false oath as to liens on an application for a certificate of title on a motor vehicle; and has designated that offense as one against the District of Columbia. The courts cannot ignore those provisions.
There appears nothing extraordinary about the results of the application of this rule of construction to the present case. Throughout the Traffic and Lien Acts is a clear intent on the part of Congress to place proceedings for violations of those acts in the hands of the Corporation Counsel for prosecution in the Municipal Court,[10] and to subject violators to punishment within the jurisdiction of that court. In the Moyer case,[11] we said:
"We think it is too plain for argument that by the amendatory section Congress intended that all prosecutions for violations of the traffic act, except for the violation of the smoke screen provision contained in section 11, should be at the instance of the corporation counsel and in the name of the District of Columbia. Unless it means this it means nothing."
We, therefore, conclude that the making of a false statement as to liens, under oath, upon an application for a certificate or a duplicate certificate of title for a motor vehicle in the District of Columbia, must be prosecuted by the Corporation Counsel in the name of the District of Columbia. Count 2 of the indictment, being in the name of the United States and signed by the United States Attorney, should have been dismissed for that reason.
*245 We are constrained to point out that even if the indictment itself had been good, the judgment would have to be reversed, because, in view of the merger of the two counts, we cannot tell upon which false statement the jury rested the general verdict. If only upon the statement as to liens, the verdict would not support the sentence of one to three years. Punishment upon conviction for that offense is a fine of not more than $500 or imprisonment for not more than one year, or both. The United States Attorney accurately foresaw this difficulty at the beginning of the trial. The Government now says that the defendant invited the error in the merger. It refers to Rule 12 (b) (2) of the Federal Rules of Criminal Procedure, 18 U.S.C.A. following section 687. But a defendant, even by invitation, cannot confer jurisdiction upon the court to impose a sentence greater than the statute permits. Rule 12 (b) (2) is plain in that respect.
The view we take on the phase of the case just discussed makes necessary a reversal of the judgment of the District Court. Since, however, the controversy as to the other count may affect the course of further proceedings, if any be contemplated in the matter, we consider and decide that problem.
Appellant-defendant says that an oath to his statement that the first duplicate certificate was lost was not "authorized by law", a requisite of the crime of perjury under the statutory definition.
The Traffic Act itself does not require an oath on an application for a duplicate; in fact, it does not mention duplicates. Its only reference to an oath is that "The commissioners shall not register any motor vehicle unless and until the owner thereof shall make application in the form prescribed by the commissioners, under oath, and be granted an official certificate of title for such vehicle." The oath thus required relates to the registration of the car. That application contains vital information for the recording of titles. A duplicate certificate is not a registration. Once a car is registered, it remains registered until its ownership changes. So far as the Traffic Act and registration are concerned, a duplicate certificate is merely the reissue of a document, copied from the Director's records. The applicant need not even identify the car if he knows the number of the original certificate so that the Director can locate the information in his files. The requirements of the statute for registration do not apply, either in terms or in principle, to duplicate certificates. So the oath required for the registration of a car cannot be said to be an oath required for the issuance of a duplicate certificate.
The Commissioners had power to make regulations. Whether or not they, therefore, had power to require an oath,[12] they did not do so. They treated the subject of duplicate certificates in some detail,[13] but they did not mention an oath.
*246 The Commissioners authorized the Director to prescribe a form. They gave him no other authority. They did not attempt to delegate to him any power to make regulations. It has been settled for many years that an official without power to make regulations cannot require an oath so as to bring it within the scope of the perjury statute.[14] We do not have to decide whether the Commissioners might have delegated to the Director the power to make regulations[15] or the power to prescribe an oath. The general power of delegation as to "administration", conferred on them by Section 6(e) of the Traffic Act does not seem to be broad enough to convey so serious a power as that to require an oath covered by the perjury statute. Certainly the power of delegation conferred by the statute did not encompass all their duties.[16] However, it is sufficient for the present case that they did not purport to delegate that power to the Director.
The Government says that the two false statements were one offense, because there was only one oath. Upon that basis it is argued that the offense was complete when one false statement was made, and that the other statement was superfluous. There is both logic and authority for that view in regard to perjury committed by several false statements under one oath, but there is also authority holding that each separate false statement upon a different matter, although all under one oath, is a separate crime.[17] We need not, and do not, consider that general proposition here, because, as we have pointed out, Congress has carved out of the general perjury statute the crime of making a false statement as to liens on an application for a certificate of title to a motor vehicle, and has prescribed for that crime a specific punishment. Two offenses can, of course, be committed by one act. So, if the defendant made two false statements, one violating the general perjury statute and the other violating the specific statute as to liens, he committed two offenses, even though he took but one oath; just as a person commits two offenses if he kills one person and wounds another with the same shot. The contention that the two false statements constituted but one offense is confronted by the practical question: If defendant committed only one offense, which offense did he commit, the one punishable by not more than one year's imprisonment, or the one punishable by not less than two years' imprisonment? The impossibility of an answer to that question demonstrates that in this case, even if both false statements were covered by the one oath, two offenses were committed.
The one remaining possible basis for holding this oath "authorized by law" is that, by requiring the reason for the application to be stated on the application, which already had an oath on it because of the lien information it contained, the Commissioners automatically placed this additional information under an oath. The first difficulty with this contention is the doctrine that an administrative officer cannot add to the content of an oath prescribed by statute so as to make falsification of the additional information perjury.[18] But in the case at bar there is another, and equally conclusive, difficulty with the contention. If the Commissioners had wanted to put the additional information under an oath, they could easily have said so. They did not say so, and we are asked to imply that they nevertheless intended it. The realities of this implication, and not the mere verbal exercise, are important. Violation of the oath already on the application as to liens was, as we have seen, punishable by not more than one year's imprisonment. We are asked to imply a change in its *247 scope so great as to make its violation punishable by not less than two years' imprisonment. Moreover, although of less consequence, we are asked to imply that the Commissioners meant to place this particular matter wholly beyond the clear intent of Congress as to violations of the traffic laws, described in the Moyer case, supra. The implication would create a striking incongruity, in that, if made, it would make a false oath as to a relatively minor bit of information punishable by a drastic and rigid provision, whereas a false oath as to the really vital information on the application, that relating to liens, is punishable by a much less and more elastic sentence.
We cannot make that implication. It is not incumbent upon the courts to write regulations. The Commissioners' failure to prescribe an oath to this additional information is clear. Their action is consistent with the general plan and intent of the statute. We have no reason to disagree with it, even if we had power to do so.
It follows that we are of opinion that an oath to the portion of the application for the duplicate certificate requiring a statement of the reason for the application was not "authorized by law" within the meaning of the perjury statute.
Appellant-defendant asserts that several other prejudicial errors were committed during the course of the trial. However, we need not consider them, since we are of opinion that the indictment should have been dismissed. Count 1 of the indictment should have been quashed, upon completion of the evidence, because the oath therein referred to was not authorized by law and, therefore, the offense described did not constitute the crime of perjury. The vice of Count 2 of the indictment was that the offense committed was not against the peace and government of the United States but was one specifically required by statute to be prosecuted by the Corporation Counsel in the name of the District of Columbia. The judgment of the District Court must, therefore, be reversed and the case remanded to that court with instructions to dismiss the indictment.
Reversed and remanded.
NOTES
[1]  Act of March 3, 1901, 31 Stat. 1329, D.C.Code, tit. 22, § 2501 (1940).
[2]  We quote only the pertinent parts of these statutes, and to lessen confusion in reading, omitted words have not been indicated in any of the quotations
[3]  Supra note 1. The minimum sentence of two years is translated by the Indeterminate Sentence Law into one to three years.
[4]  46 Stat. 1424 (1931), D.C.Code, tit. 40, § 603 (1940).
[5]  Act of March 3, 1925, as amended, D. C.Code, tit. 40, §§ 601  617 (1940).
[6]  54 Stat. 736, D.C.Code, tit. 40, §§ 701-715 (1940).
[7]  MacEvoy Co. v. United States, 1944, 322 U.S. 102, 107, 64 S.Ct. 890, 88 L.Ed. 1163.
[8]  United States v. Noveck, 1927, 273 U.S. 202, 47 S.Ct. 341, 71 L.Ed. 610; see also United States v. Gilliland, 1941, 312 U.S. 86, 61 S.Ct. 518, 85 L.Ed. 598.
[9]  Epstein v. United States, 7 Cir., 1912, 196 F. 354; Schmidt v. United States, 9 Cir., 1904, 133 F. 257; United States v. Dupont, D.C.Or.1910, 176 F. 823; Hammer v. United States, 2 Cir., 1925, 6 F. 2d 786, reversed on other grounds, 1926, 271 U.S. 620, 625, 46 S.Ct. 603, 70 L.Ed. 1118.
[10]  District of Columbia v. Moyer, 1937, 68 App.D.C. 98, 93 F.2d 527.
[11]  Id., 68 App.D.C. at page 99, 93 F.2d at page 528.
[12]  United States v. Bailey, 1835, 9 Pet. 238, 9 L.Ed. 113; Caha v. United States, 1894, 152 U.S. 211, 14 S.Ct. 513, 38 L.Ed. 415; United States v. Smull, 1915, 236 U.S. 405, 35 S.Ct. 349, 59 L.Ed. 641; United States v. Morehead, 1917, 243 U. S. 607, 37 S.Ct. 458, 61 L.Ed. 926.
[13]  Vehicle Title and Registration Regulations for the District of Columbia, effective January 7, 1943, § 9:

"(a) Whenever a certificate is lost, stolen, destroyed, or illegally detained from the owner, or the director decides the face or back of the certificate has been altered, erased or mutilated by a person other than the director or recorder, or a certificate cannot be officially altered, the owner shall make application for a duplicate certificate on a form furnished by the director. Such application shall contain reasons for requiring a duplicate certificate and lien information, if any. If such application is not accompanied by such certificate and there are no recorded liens against the vehicle described on such certificate, such application must contain an executed statement from such lien holders or other evidence satisfactory to the director that they do not hold such certificate. Any such application which contains information relating to liens which have not been recorded or released by the recorder shall be accompanied by the instruments or any other papers necessary to entitle such liens to be entered or released on such duplicate certificate.
"(b) Every application for a duplicate shall be executed and accompanied by the fees for such duplicate certificate and the recording thereon of such lien information, if any, and shall be delivered to the director by the owner or his agent."
[14]  United States v. George, 1913, 228 U.S. 14, 33 S.Ct. 412, 57 L.Ed. 712; Viereck v. United States, 1943, 318 U.S. 236, 241-243, 63 S.Ct. 561, 87 L.Ed. 734.
[15]  Cf. Fleming v. Mohawk Wrecking & Lumber Co., 1947, 331 U.S. 111, 67 S.Ct. 1129, and Cudahy Packing Co. v. Holland, 1942, 315 U.S. 357, 62 S.Ct. 651, 86 L.Ed. 895.
[16]  See Cudahy Packing Co. v. Holland, supra, note 15, 315 U.S. at page 363, 62 S.Ct. 651, 86 L.Ed. 895.
[17]  Cases collected at 124 Am.St.Rep. 676; see also Seymour v. United States, 8 Cir., 1935, 77 F.2d 577, 581, 99 A.L.R. 880.
[18]  Patterson v. United States, 9 Cir., 1910, 181 F. 970, 973, and cases there cited; United States v. Robertson, D.C. S.D.Cal.1919, 257 F. 195.


Schulman v Schulman (2018 NY Slip Op 07770)

Schulman v Schulman

2018 NY Slip Op 07770

Decided on November 14, 2018

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 14, 2018
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department

WILLIAM F. MASTRO, J.P.
JEFFREY A. COHEN
SYLVIA O. HINDS-RADIX
ANGELA G. IANNACCI, JJ.

2016-02630
2016-09442
 (Index No. 60025/13)

[*1]David B. Schulman, appellant,
vMartin L. Schulman, et al., respondents.

Wickham, Bressler & Geasa, P.C., Mattituck, NY (Eric J. Bressler of counsel), for appellant.
Esseks, Hefter, Angel Di Talia & Pasca, LLP, Riverhead, NY (Stephen R. Angel and Amanda Star Frazer of counsel), for respondents.

DECISION & ORDER
In an action, inter alia, to recover damages for conversion and fraud, and for declaratory relief, the plaintiff appeals from (1) an order of the Supreme Court, Suffolk County (Elizabeth H. Emerson, J.), dated March 4, 2016, and (2) an order of the same court dated August 10, 2016. The order dated March 4, 2016, granted the defendants' motion for summary judgment dismissing the complaint. The order dated August 10, 2016, insofar as appealed from, upon reargument, adhered to the original determination in the order dated March 4, 2016.
ORDERED that the appeal from the order dated March 4, 2016, is dismissed, as that order was superseded by the order dated August 10, 2016, made upon reargument; and it is further,
ORDERED that the order dated August 10, 2016, is affirmed insofar as appealed from; and it is further,
ORDERED that one bill of costs is awarded to the defendants.
In March 2013, the plaintiff commenced this action against Martin L. Schulman (hereinafter Martin), Lee G. Schulman (hereinafter Lee), Julie Slann (hereinafter Julie), and Vascular Diagnostic Laboratories, Inc. (hereinafter VDL), to recover damages for conversion and fraud, as well as for declaratory relief and an accounting. The plaintiff alleged, inter alia, that Martin, Lee, and Julie fraudulently converted the plaintiff's ownership interest in VDL and transferred it to Julie.
Following discovery, the defendants moved for summary judgment dismissing the complaint, arguing, inter alia, that the plaintiff's causes of action were time-barred by the applicable statutes of limitations. In an order dated March 4, 2016, the Supreme Court granted the defendants' motion. The plaintiff thereafter moved for leave to reargue his opposition to the defendants' motion. In an order dated August 10, 2016, the court granted reargument, and upon reargument, adhered to [*2]its original determination. The plaintiff appeals.
"An action alleging conversion must be commenced within three years of the date of the conversion" (Stewart v GDC Tower at Greystone, 138 AD3d 729, 730; see CPLR 214[3]; Mariano v Fiorvante, 118 AD3d 961, 962). Here, the defendants established, prima facie, that the plaintiff's cause of action alleging conversion accrued in 2003, and was therefore time-barred (see Stewart v GDC Tower at Greystone, 138 AD3d at 730; Theaprin Pharms., Inc. v Conway, 137 AD3d 1254). In opposition, the plaintiff failed to raise a triable issue of fact (see Stewart v GDC Tower at Greystone, 138 AD3d at 730).
A cause of action based upon fraud must be commenced within the greater of six years after the commission of the fraud, or two years after the date the fraud was discovered or could with reasonable diligence have been discovered (see CPLR 203[g]; 213[8]; Celestin v Simpson, 153 AD3d 656, 657). Here, the defendants established, prima facie, that the plaintiff commenced this action more than six years after the alleged fraud took place and more than two years after the plaintiff discovered the alleged fraud (see Celestin v Simpson, 153 AD3d at 657; Simpkins v Mackey, 149 AD3d 1002; Coleman v Wells Fargo & Co., 125 AD3d 716, 717). In opposition, the plaintiff failed to raise a triable issue of fact (see Celestin v Simpson, 153 AD3d at 657; Coleman v Wells Fargo & Co., 125 AD3d at 717).
"Actions for declaratory judgments are not ascribed a certain limitations period. The nature of the relief sought in a declaratory judgment action dictates the applicable limitations period. Thus, if the action for a declaratory judgment could have been brought in a different form asserting a particular cause of action, the limitations period applicable to the particular cause of action will apply" (Waldman v 853 St. Nicholas Realty Corp., 64 AD3d 585, 587 [citations omitted]). Here, the cause of action for declaratory relief could have been brought, and essentially was brought, in the form of the causes of action to recover damages for conversion and fraud. Since this action was commenced more than three years from the date the alleged conversion took place, and more than six years from the commission of the alleged fraud or two years from the discovery of the alleged fraud, the declaratory judgment cause of action is time-barred (see DiRaimondo v Calhoun, 131 AD3d 1194, 1198; Akhunov v 771620 Equities Corp., 78 AD3d 870; Tornheim v Tornheim, 67 AD3d 775; Waldman v 853 St. Nicholas Realty Corp., 64 AD3d at 587).
Since the defendants were entitled to summary judgment dismissing the underlying causes of action, they were also entitled to summary judgment dismissing the cause of action for an accounting (see Cambridge Capital Real Estate Invs., LLC v Archstone Enter. LP, 137 AD3d 593, 596; Pacheco v Alvia, 209 AD2d 493).
MASTRO, J.P., COHEN, HINDS-RADIX and IANNACCI, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court