People v. Bugai

190 N.W.2d 257, 33 Mich. App. 465, 1971 Mich. App. LEXIS 1789

Opinions

Danhof, J.

Defendant was convicted, upon his plea of guilty, of the offense of receiving and concealing stolen property valued at less than $100. MCLA § 750.535 (Stat Ann 1971 Cum Supp § 28-.803). Defendant appeals as of right.

Defendant’s only claim on appeal is that he pled guilty under the belief that he would not be prosecuted for violation of probation on another charge. The record does not support defendant’s argument. The trial court informed defendant that he might, as the result of his plea of guilty to the instant offense, be charged with violation of probation.

The dissenting opinion would vacate the guilty plea because the trial court, in accepting defendant’s plea, failed to comply with GCR 1963, 785.3. We disagree for two reasons. First, the defendant has not raised the issue that the plea was improper under GCR 1963, 785.3. Second, even if the issue had been properly raised, GCR 1963, 785.3 is not applicable in the instant case.

Defendant pled guilty to a misdemeanor under MCLA § 750.535 (Stat Ann 1971 Cum Supp § 28-.803). Since this statute fails to expressly provide the penalty to be imposed, MCLA § 750.504 (Stat Ann 1954 Rev § 28.772) becomes operative. This statute prescribes a penalty of not more than 90 days imprisonment or a fine of not more than $100, or both. The offense, due to the permissible maximum penalty under the statute, is designated a “simple misdemeanor” as opposed to a “circuit court misdemeanor”. People v. Mallory (1967), 378 Mich 538, 557, 558.

In People v. Barry (1970), 23 Mich App 121, 122, this Court stated:

“Although a trial judge is clearly under an obligation in accepting a guilty plea to comply with the respective court rule (GCR 1963, 785.3) and statutory provision (MCLA § 768.35 [Stat Ann 1954 Rev § 28.1058]) in felony cases and circuit court misdemeanors, such responsibility does not extend to simple misdemeanors.”

Arguably, GCR 1963, 785.3 could be extended to include a simple misdemeanor which provides a permissible maximum sentence of three months imprisonment or a $100 fine, or both. See People v. Mallory, supra, at 559. However, until directed to do otherwise, we are of the opinion that the holding in People v. Barry, supra, should be followed.

Judgment affirmed.

Bronson, J., concurred.