People v. Freeby

Michigan Court of Appeals

People v. Freeby

230 N.W.2d 21, 59 Mich. App. 763, 1975 Mich. App. LEXIS 1407

CourtMichigan Court of Appeals

DecidedMarch 24, 1975

DocketDocket No. 18977

StatusPublished

This text of 230 N.W.2d 21 (People v. Freeby) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Freeby, 230 N.W.2d 21, 59 Mich. App. 763, 1975 Mich. App. LEXIS 1407 (Mich. Ct. App. 1975).

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Opinions

T. M. Burns, P. J.

On July 16, 1973, a complaint and warrant were issued charging defendant Harold Allen Freeby with attempting to break and enter, with the intent to commit larceny therein,¹ the Vacationland Sales Store located in Midland County, Michigan, on July 14, 1973. Defendant’s preliminary examination was held on July 26, 1973, and he was bound over to circuit court for trial. On August 17, 1973, an information containing the aforementioned charge was filed, defendant was arraigned on that information and stood mute. At the same time, defendant was also arraigned on a separate information charging him with receiving stolen goods² valued in excess of $100. Defendant also stood mute to this charge.

On September 11, 1973, by way of a negotiated plea, defendant pled guilty to the attempted breaking and entering charge in exchange for the prosecutor’s nolle prosequi of the charge of receiving stolen goods. On October 5, 1973, defendant was sentenced to a term of from 2-1/2 to 5 years in [765]*765prison. Defendant subsequently filed a motion in the trial court seeking withdrawal of his guilty plea on the grounds that he had not been properly advised of his constitutional rights and that his plea had not been knowingly, understandingly and voluntarily made. After a hearing on this motion was held, the trial court entered an order denying the motion to withdraw the plea. It is from the denial of this motion that this appeal is taken.

We narrow the scope of our review to the single issue which we deem to be decisional and to mandate a reversal, namely: whether defendant’s guilty plea must be reversed due to the fact that the trial court failed to inform him of his right to a nonjury trial.

However strong our feelings may be as to substantial compliance being sufficient with regard to advising an accused of his constitutional rights, the fact still remains that our Supreme Court, effective June 1, 1973, included the following provision in GCR 1963, 785:

".7 Plea of Guilty and Plea of Nolo Contendere. A defendant may enter a plea of guilty or plead nolo contendere only with the consent of the court. If the defendant states his intent to plead guilty or to plead nolo contendere the following practice shall be observed:

"(1) Advice by the Court. The court shall not accept a plea of guilty or nolo contendere without first personally addressing the defendant and informing him of and determining that he understands the following:

"(d) that by his plea of guilty or nolo contendere the defendant waives the following rights:

"(i) the right to a jury trial or trial by the court.

"(5) The procedure and practice under subrule 785.7 [766]*766is mandatory and failure to comply therewith constitutes reversible error."(Emphasis added.)

Despite the fact that the plea proceedings in all other respects complied with the provisions of the court rule, the fact remains that the trial court did not at any time tell defendant that by pleading guilty he was waiving his right to "trial by the court”. The court’s failure to do so constitutes reversible error. In People v Shekoski, 393 Mich 134; 224 NW2d 656 (1974), our Supreme Court recently issued the following order:

"The requirements for a valid guilty plea after June 1, 1973 are set forth specifically in GCR 1963, 785.7. The bench and bar are hereby advised that strict adherence to those requirements is mandatory and that neither substantial compliance nor the absence of prejudicial error will be deemed sufficient. GCR 1963, 785.7(5).”

When the Supreme Court says that strict adherence to the requirements of this court rule is mandatory, we are powerless to substitute our judgment that defendant was accorded all his rights. Therefore, we reluctantly, but unhesitatingly, vacate the judgment of conviction and re-. mand to the trial court for a new trial.

Reversed and remanded for further proceedings consistent with this opinion.

M. J. Kelly, J., concurred.

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T. M. Burns, P. J.

On July 16, 1973, a complaint and warrant were issued charging defendant Harold Allen Freeby with attempting to break and enter, with the intent to commit larceny therein,¹ the Vacationland Sales Store located in Midland County, Michigan, on July 14, 1973. Defendant’s preliminary examination was held on July 26, 1973, and he was bound over to circuit court for trial. On August 17, 1973, an information containing the aforementioned charge was filed, defendant was arraigned on that information and stood mute. At the same time, defendant was also arraigned on a separate information charging him with receiving stolen goods² valued in excess of $100. Defendant also stood mute to this charge.

On September 11, 1973, by way of a negotiated plea, defendant pled guilty to the attempted breaking and entering charge in exchange for the prosecutor’s nolle prosequi of the charge of receiving stolen goods. On October 5, 1973, defendant was sentenced to a term of from 2-1/2 to 5 years in [765]*765prison. Defendant subsequently filed a motion in the trial court seeking withdrawal of his guilty plea on the grounds that he had not been properly advised of his constitutional rights and that his plea had not been knowingly, understandingly and voluntarily made. After a hearing on this motion was held, the trial court entered an order denying the motion to withdraw the plea. It is from the denial of this motion that this appeal is taken.

We narrow the scope of our review to the single issue which we deem to be decisional and to mandate a reversal, namely: whether defendant’s guilty plea must be reversed due to the fact that the trial court failed to inform him of his right to a nonjury trial.

However strong our feelings may be as to substantial compliance being sufficient with regard to advising an accused of his constitutional rights, the fact still remains that our Supreme Court, effective June 1, 1973, included the following provision in GCR 1963, 785:

".7 Plea of Guilty and Plea of Nolo Contendere. A defendant may enter a plea of guilty or plead nolo contendere only with the consent of the court. If the defendant states his intent to plead guilty or to plead nolo contendere the following practice shall be observed:

"(1) Advice by the Court. The court shall not accept a plea of guilty or nolo contendere without first personally addressing the defendant and informing him of and determining that he understands the following:

"(d) that by his plea of guilty or nolo contendere the defendant waives the following rights:

"(i) the right to a jury trial or trial by the court.

"(5) The procedure and practice under subrule 785.7 [766]*766is mandatory and failure to comply therewith constitutes reversible error."(Emphasis added.)

Despite the fact that the plea proceedings in all other respects complied with the provisions of the court rule, the fact remains that the trial court did not at any time tell defendant that by pleading guilty he was waiving his right to "trial by the court”. The court’s failure to do so constitutes reversible error. In People v Shekoski, 393 Mich 134; 224 NW2d 656 (1974), our Supreme Court recently issued the following order:

"The requirements for a valid guilty plea after June 1, 1973 are set forth specifically in GCR 1963, 785.7. The bench and bar are hereby advised that strict adherence to those requirements is mandatory and that neither substantial compliance nor the absence of prejudicial error will be deemed sufficient. GCR 1963, 785.7(5).”

When the Supreme Court says that strict adherence to the requirements of this court rule is mandatory, we are powerless to substitute our judgment that defendant was accorded all his rights. Therefore, we reluctantly, but unhesitatingly, vacate the judgment of conviction and re-. mand to the trial court for a new trial.

Reversed and remanded for further proceedings consistent with this opinion.

M. J. Kelly, J., concurred.

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Bluebook (online)

230 N.W.2d 21, 59 Mich. App. 763, 1975 Mich. App. LEXIS 1407, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-freeby-michctapp-1975.

Opinions

T. M. Burns, P. J.

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