WAYNE PROS v. RECORDER'S JUDGE (REM)

PER CURIAM.

This case was remanded to us for us to consider in light of In re People v Burton, 429 Mich. 133; 413 N.W.2d 413 (1987). The facts of the case are set forth in our previous opinion, Wayne Co Prosecutor v Recorder's Court Judge, 151 Mich. App. 550; 391 N.W.2d 407 (1986). In that opinion, we entertained the prosecutor's complaint for superintending control and held that the Recorder's Court judge committed an error of law when he granted defendant Wilson's motion for a new trial after two res gestae witnesses had been endorsed during the trial. In Burton, the Supreme Court held that this Court had improperly granted an order of superintending control where we had held that the trial court erred in granting the defendant's motion for new trial after a prosecution witness had recanted her trial testimony. Burton, supra, p 144. The Supreme Court held that a writ of superintending control is improper when used merely to review a trial court's exercise of discretion. Id. The Supreme Court emphasized that an order of superintending control is to be used only to determine if the lower court "upon the record made, had jurisdiction, whether or not it exceeded that jurisdiction and proceeded according to law." Id., p 139.

We feel an order of superintending control is proper in the instant case. In this case, the basis for our review and disposition is not that the order of the Recorder's Court constituted an abuse of discretion, but, rather, that the court committed an error of law. Burton allows an order of superintending control to be used in such situations.

The trial court's order granting a new trial is vacated and Wilson's conviction is reinstated.