M. J. Kelly, J.
Defendant was charged with assault with intent to rob, being armed, contrary [326]*326to MCL 750.89; MSA 28.284. A preliminary examination was held on this matter September 26, 1975. Following a heated exchange between the examining magistrate and defendant’s appointed attorney, Frank Eaman, the court dismissed Mr. Eaman from the case. He exited with an assurance that he was on his way to the Court of Appeals. He never arrived. New counsel was appointed for the defendant and he was bound over for trial following the preliminary examination.
Thereafter, on November 12, 1975, the defendant entered a plea of guilty before Judge Kadela of the Detroit Recorder’s Court, and on November 14, 1975, defendant was sentenced (in accordance with a sentence agreement) to 5 to 15 years in prison. Appeal was taken of right and a panel of this Court affirmed the conviction on February 9, 1977.
Subsequently the defendant moved in pro per to vacate his plea and sentence based on the discharge of his original attorney, Frank Eaman. This motion was denied by Recorder’s Court Judge Justin C. Ravitz. The defendant next moved in pro per to withdraw his guilty plea contending that the plea had been involuntary and that he had been denied effective assistance of counsel. Judge Ravitz found these contentions to be without merit and denied this motion. Finally, defendant obtained appointed counsel and moved for a reconsideration of the original motion. On October 12, 1978, Judge Ravitz ordered a new trial based on the examining magistrate’s dismissal of defendant’s attorney at the preliminary examination. It is from this order that the prosecutor now brings this delayed appeal.
The prosecutor argues that the court’s grant of a new trial constituted an abuse of discretion. We agree.
[327]*327The court held that a new trial was required because of the examining magistrate’s summary dismissal of the defendant’s court-appointed attorney. The court characterized the magistrate’s action as constituting an impermissible interference with the attorney-client relationship and defendant’s right to counsel.1
Defendant’s original attorney was dismissed at the preliminary examination under the following circumstances. Defendant’s attorney contended that, when the defendant. was brought in the courtroom for this proceeding, a police officer on the case signaled to an identification witness, as if to verify defendant’s presence. Mr. Eaman sought to raise the issue of an improper identification before the examining magistrate, Judge Roberson. The magistrate, however, abruptly terminated the attorney’s argument and the following colloquy ensued:
"Mr. Eaman: There was a suggested identification in this case._
[328]*328"The Court: Mr. Eaman, I keep telling you there’s a way to do it. Now, sit down. You’re getting on my nerves.
"Mr. Eaman: Your Honor, I have a right to speak for my client.
"The Court: Well, sit down. I’ve allowed you to make your argument. Now sit down.
"Mr. Eaman: I don’t believe I made a sufficient record.
"The Court: Mr. Eaman, you’re out of this case now leave.
"Mr. Eaman: I’d like a stay to appeal, your Honor.
"The Court: Leave.
"Mr. Eaman: Your Honor is withdrawing my Appearance because I’m defending my client?
"The Court: You’re out of the case now. Now Mr. Fox, you go back in. I’ll appoint another attorney to represent you. Mr. Eaman, get out of here. Leave right now.
"Mr. Eaman: I’m on my way now your Honor.
"The Court: Leave right now. Take your papers in your hand and get out of here.
"Mr. Eaman: To the First Federal Building, your Honor.”
While it is well settled that gross incompetence, physical incapacity or contumacious conduct may justify the court’s removal of an attorney (see United States v Dinitz, 538 F2d 1214 (CA 5, 1976), rehearing den 542 F2d 1174 (1976), cert den 429 US 1104; 97 S Ct 1133; 51 L Ed 2d 556 [1977]) the action of the examining magistrate cannot be justified on this record. It appears that the peremptory dismissal of counsel was the result of personal pique and impatience and had the effect of punishing the defense attorney’s attempts to protect his client’s interests. We conclude that Judge Roberson’s actions were unreasonable and deserve censure.
[329]*329Notwithstanding our conclusion in this regard, we hold the error committed at the preliminary examination did not justify the court’s order of a new trial after full appeal and affirmance.
The standards applied in determining whether a new trial should be granted are set out in MCL 769.26; MSA 28.1096 as follows:
"No judgment or verdict shall be set aside or reversed or a new trial be granted by any court of this state in any criminal case, on the ground of misdirection of the jury, or the improper admission or rejection of evidence, or for error as to any matter of pleading or procedure, unless in the opinion of the court, after an examination of the entire cause* it shall affirmatively appear that the error complained of has resulted in a miscarriage of justice.”
In the instant case the course of the proceedings subsequent to the preliminary examination cured any prejudice occasioned there. A review of the record fails to disclose that the irregularities at the proceeding resulted in a miscarriage of justice.
Following the dismissal of defendant’s original attorney, the court appointed substitute counsel to represent him. This attorney, Brenda Maxwell, pursued the issue of the alleged improper identification raised by Mr. Eaman, and a fully contested adversary hearing on the matter was held before Judge Kadela of the Detroit Recorder’s Court. It should be noted that Mr. Eamon testified at this proceeding concerning those events. On this record it is clear that the dismissal of defendant’s attorney did not inhibit defendant’s ability to raise the identification issue or any other issue at any stage of the proceedings. Thereafter defendant entered a plea of guilty to the charged offense. Judge Ravitz at all times, including in the opinion granting new [330]*330trial, specifically found that the plea was not coerced but voluntarily and intelligently tendered. Additionally he found that the defendant was not denied effective assistance of counsel.
Under these circumstances we conclude that the magistrate’s actions did not affect the fairness of the court proceeding when viewed as a whole and that the defendant failed to demonstrate that he was prejudiced as required under MCL 769.26; MSA 28.1096. People v Dunn, 380 Mich 693; 158 NW2d 404 (1968), People v Beard, 78 Mich App 636; 261 NW2d 27 (1977).
Further, as this Court has recently reaffirmed, in the absence of prejudice a defendant is precluded from raising errors committed at the preliminary examination unless they are timely asserted.2
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M. J. Kelly, J.
Defendant was charged with assault with intent to rob, being armed, contrary [326]*326to MCL 750.89; MSA 28.284. A preliminary examination was held on this matter September 26, 1975. Following a heated exchange between the examining magistrate and defendant’s appointed attorney, Frank Eaman, the court dismissed Mr. Eaman from the case. He exited with an assurance that he was on his way to the Court of Appeals. He never arrived. New counsel was appointed for the defendant and he was bound over for trial following the preliminary examination.
Thereafter, on November 12, 1975, the defendant entered a plea of guilty before Judge Kadela of the Detroit Recorder’s Court, and on November 14, 1975, defendant was sentenced (in accordance with a sentence agreement) to 5 to 15 years in prison. Appeal was taken of right and a panel of this Court affirmed the conviction on February 9, 1977.
Subsequently the defendant moved in pro per to vacate his plea and sentence based on the discharge of his original attorney, Frank Eaman. This motion was denied by Recorder’s Court Judge Justin C. Ravitz. The defendant next moved in pro per to withdraw his guilty plea contending that the plea had been involuntary and that he had been denied effective assistance of counsel. Judge Ravitz found these contentions to be without merit and denied this motion. Finally, defendant obtained appointed counsel and moved for a reconsideration of the original motion. On October 12, 1978, Judge Ravitz ordered a new trial based on the examining magistrate’s dismissal of defendant’s attorney at the preliminary examination. It is from this order that the prosecutor now brings this delayed appeal.
The prosecutor argues that the court’s grant of a new trial constituted an abuse of discretion. We agree.
[327]*327The court held that a new trial was required because of the examining magistrate’s summary dismissal of the defendant’s court-appointed attorney. The court characterized the magistrate’s action as constituting an impermissible interference with the attorney-client relationship and defendant’s right to counsel.1
Defendant’s original attorney was dismissed at the preliminary examination under the following circumstances. Defendant’s attorney contended that, when the defendant. was brought in the courtroom for this proceeding, a police officer on the case signaled to an identification witness, as if to verify defendant’s presence. Mr. Eaman sought to raise the issue of an improper identification before the examining magistrate, Judge Roberson. The magistrate, however, abruptly terminated the attorney’s argument and the following colloquy ensued:
"Mr. Eaman: There was a suggested identification in this case._
[328]*328"The Court: Mr. Eaman, I keep telling you there’s a way to do it. Now, sit down. You’re getting on my nerves.
"Mr. Eaman: Your Honor, I have a right to speak for my client.
"The Court: Well, sit down. I’ve allowed you to make your argument. Now sit down.
"Mr. Eaman: I don’t believe I made a sufficient record.
"The Court: Mr. Eaman, you’re out of this case now leave.
"Mr. Eaman: I’d like a stay to appeal, your Honor.
"The Court: Leave.
"Mr. Eaman: Your Honor is withdrawing my Appearance because I’m defending my client?
"The Court: You’re out of the case now. Now Mr. Fox, you go back in. I’ll appoint another attorney to represent you. Mr. Eaman, get out of here. Leave right now.
"Mr. Eaman: I’m on my way now your Honor.
"The Court: Leave right now. Take your papers in your hand and get out of here.
"Mr. Eaman: To the First Federal Building, your Honor.”
While it is well settled that gross incompetence, physical incapacity or contumacious conduct may justify the court’s removal of an attorney (see United States v Dinitz, 538 F2d 1214 (CA 5, 1976), rehearing den 542 F2d 1174 (1976), cert den 429 US 1104; 97 S Ct 1133; 51 L Ed 2d 556 [1977]) the action of the examining magistrate cannot be justified on this record. It appears that the peremptory dismissal of counsel was the result of personal pique and impatience and had the effect of punishing the defense attorney’s attempts to protect his client’s interests. We conclude that Judge Roberson’s actions were unreasonable and deserve censure.
[329]*329Notwithstanding our conclusion in this regard, we hold the error committed at the preliminary examination did not justify the court’s order of a new trial after full appeal and affirmance.
The standards applied in determining whether a new trial should be granted are set out in MCL 769.26; MSA 28.1096 as follows:
"No judgment or verdict shall be set aside or reversed or a new trial be granted by any court of this state in any criminal case, on the ground of misdirection of the jury, or the improper admission or rejection of evidence, or for error as to any matter of pleading or procedure, unless in the opinion of the court, after an examination of the entire cause* it shall affirmatively appear that the error complained of has resulted in a miscarriage of justice.”
In the instant case the course of the proceedings subsequent to the preliminary examination cured any prejudice occasioned there. A review of the record fails to disclose that the irregularities at the proceeding resulted in a miscarriage of justice.
Following the dismissal of defendant’s original attorney, the court appointed substitute counsel to represent him. This attorney, Brenda Maxwell, pursued the issue of the alleged improper identification raised by Mr. Eaman, and a fully contested adversary hearing on the matter was held before Judge Kadela of the Detroit Recorder’s Court. It should be noted that Mr. Eamon testified at this proceeding concerning those events. On this record it is clear that the dismissal of defendant’s attorney did not inhibit defendant’s ability to raise the identification issue or any other issue at any stage of the proceedings. Thereafter defendant entered a plea of guilty to the charged offense. Judge Ravitz at all times, including in the opinion granting new [330]*330trial, specifically found that the plea was not coerced but voluntarily and intelligently tendered. Additionally he found that the defendant was not denied effective assistance of counsel.
Under these circumstances we conclude that the magistrate’s actions did not affect the fairness of the court proceeding when viewed as a whole and that the defendant failed to demonstrate that he was prejudiced as required under MCL 769.26; MSA 28.1096. People v Dunn, 380 Mich 693; 158 NW2d 404 (1968), People v Beard, 78 Mich App 636; 261 NW2d 27 (1977).
Further, as this Court has recently reaffirmed, in the absence of prejudice a defendant is precluded from raising errors committed at the preliminary examination unless they are timely asserted.2 In the instant case defendant’s conviction was properly appealed by competent counsel and was affirmed by this Court on February 9, 1977. Numerous issues were raised at that time, but presumably defendant and his appellate counsel did not regard the error now raised as being serious or of such magnitude as to require reversal. The case of Harling v United States, 387 A2d 1101 (DC App, 1978), referred to in the footnote, had not been decided at the time of the original appeal. No petition for rehearing, delayed or otherwise, was brought in this Court to raise the issue frontally. Instead it was presented to a Recorder’s Court judge different from the trial judge who, although expressly finding no prejudice to defendant, nonetheless granted him a new trial. The failure to raise the issue on appeal waives it. Defendant’s guilty plea was properly taken when he was represented by competent counsel and the raising of this issue two years later in the trial [331]*331court, after the plea had been affirmed on appeal, was untimely.
Under the circumstances of this case we conclude the trial court abused its discretion and erred in granting defendant a new trial.
The dissent appears to raise a strawman by referring to the defendant’s failure to object at the time Mr. Eaman was dismissed. That is not the basis for our ruling and the trial court was eminently correct in not requiring the then accused to perform like an attorney. The other side of the coin is that the trial court did not assess at all the failure of competent defense counsel before and at the time of plea to raise the issue and competent appellate counsel did not do so either. It is obviously a case of hindsight having remarked the error after the Harling opinion came to the notice of interested parties.
Reversed.
D. S. DeWitt, J., concurred.