People v. Amos

205 N.W.2d 274, 44 Mich. App. 484, 1973 Mich. App. LEXIS 1024

• Court: Michigan Court of Appeals
• Decided: February 2, 1973
• Docket: Docket 12910
• Status: Published

Opinions

On Rehearing

J. H. Gillis, P. J.

This case is before us on rehearing. The facts and circumstances are fully set forth in our prior opinion at 42 Mich App 629 (1972).

Therein we held that MCLA 771.14; MSA 28.1144, makes mandatory the preparation of a presentence report before imposition of sentence. We held further that defendant was powerless to waive his statutory right to have the report prepared.

On rehearing, we do not reach the question whether the preparation of the report is mandatory. Assuming arguendo that it is, we are nevertheless convinced that a defendant does have the power to waive a statutory right.

It is not seriously questioned that a defendant has the power to waive constitutional rights, provided he does so intelligently, understandingly and voluntarily. Johnson v Zerbst, 304 US 458, 464; 58 S Ct 1019, 1023; 82 L Ed 1461, 1466 (1938); Cam-ley v Cochran, 369 US 506; 82 S Ct 884; 8 L Ed 2d 70 (1962); Boykin v Alabama, 395 US 238; 89 S Ct 1709; 23 L Ed 2d 274 (1969). See, e.g, People v Jaworski, 387 Mich 21 (1972). Constitutional rights take precedence over statutory rights. US Const, Art VI, § 2. See also 16 Am Jur 2d, Constitutional Law, § 50, pp 221-223.

If a defendant has the power to waive rights deemed to be of constitutional dimensions, a forti-ori he has the power to waive a right deemed of lesser importance, i.e., a statutory right.

There is no question on this record that the waiver herein was made intelligently, understandingly and voluntarily. Accordingly, we affirm.

Targonski, J., concurred.