People v. Grifka

218 N.W.2d 805, 53 Mich. App. 129, 1974 Mich. App. LEXIS 1112

• Court: Michigan Court of Appeals
• Decided: May 1, 1974
• Docket: Docket No. 16713
• Status: Published

Opinion

R. B. Burns, J.

As a result of a plea bargain defendant pled guilty to the charge of second-degree murder. MCLA 750.317; MSA 28.549. He was sentenced to a term of from 10 to 40 years in prison.

Defendant claims the trial court erred by not committing him to the center for forensic psychiatry, pursuant to MCLA 767.27a; MSA 28.966(11) and GCR 1963, 786, to determine if he was competent to stand trial.

Prior to the defendant pleading guilty he was examined by a psychiatrist, at the request of the prosecutor, to determine his competency to stand trial. The doctor concluded that he was competent and capable of assisting in his defense.

There was no written motion before the court and there was no order of the court referring the defendant to the doctor.

GCR 1963, 786.1 states:

"The issue of a defendant’s competence to stand trial as defined in Act No. 266 of the Public Acts of 1966 may be raised at any time before trial by a written motion to commit the defendant to the department of Mental Health.” (Emphasis supplied.)

As there was not a written motion¹ before the court to refer the defendant to the forensic center, upon which the court could act, the court did not err.

Next defendant claims the trial court erred when it failed to inform him of his right to compulsory process for obtaining witnesses.

The trial court complied with Boykin v Alabama, 395 US 238; 89 S Ct 1709; 23 L Ed 2d 274 (1969). The guidelines set forth in GCR 1963, 785.7 were not in effect at the time the plea was taken.

The first claim of error by the defendant is that the court’s examination of the defendant at the time of the plea failed to establish his participation in the crime.

The court’s examination of the defendant established his guilt of felony murder. MCLA 750.316; MSA 28.548. As a result of plea bargaining he was allowed to plead guilty to second-degree murder.

As stated in People v Collins, 380 Mich 131, 135; 156 NW2d 566 (1968):

"Furthermore, this Court will not regard as the basis for a new trial or reversal of a conviction any procedural error which does not result in a miscarriage of justice. GCR 1963, 529; CL 1948, §769.26 [MSA 28.1096],

"If there is any miscarriage of justice, under these circumstances it can only be one in which the people of the State of Michigan have exacted an insufficient penalty. Putting it another way, if there has been, under these circumstances, a miscarriage of justice, it is a miscarriage which ran to the benefit of the defendants and to the detriment of the people. Of such a miscarriage of justice, only the people can complain.”

Affirmed.

All concurred.

1 Neither does the record indicate an oral motion to refer the defendant to the center.