People v. Eagan

208 N.W.2d 219, 46 Mich. App. 377, 1973 Mich. App. LEXIS 1211

Opinion

Lesinski, C. J.

Defendant appeals his plea-based conviction of breaking and entering, MCLA 750.110; MSA 28.305. In accepting the plea the trial judge informed the defendant, a 17-year-old, that if he did not plead guilty he would have the right to a trial; however, the trial judge failed to inform the defendant that he had a right to a trial by jury or by the court without a jury. This was error. People v Jaworski, 387 Mich 21 (1972).

It cannot be said that defendants in criminal trials could be presumed to know of a right to trial by jury or by the court without a jury. A knowing, understanding, and voluntary waiver requires the right to be unequivocally explained. Where it is not done, the law presumes no waiver from a silent record. Boykin v Alabama, 395 US 238; 89 S Ct 1709; 23 L Ed 2d 274 (1969).

That the right to trial and right to trial by jury are substantially different, no one could argue. See Duncan v Louisiana, 391 US 145; 88 S Ct 1444; 20 L Ed 2d 491 (1968). This is precisely the reason we reverse.

Reversed and remanded.

All concurred.