People v. Hanson

444 N.W.2d 175, 178 Mich. App. 507

• Court: Michigan Court of Appeals
• Decided: July 17, 1989
• Docket: Docket 109340
• Status: Published

Opinions

Maher, J.

On February 17, 1988, defendant pled guilty in: the Detroit Recorder’s Court to probation violation, MCL 771.4; MSA 28.1134, for failing to report to his probation officer on a monthly basis as required by the order of probation imposed upon his conviction of malicious destruction of property worth over $100. After being sentenced to one to four years imprisonment, he filed this appeal as of right, claiming that his plea should be vacated and the charge dismissed because (i) the police did not act with due diligence in executing the bench warrant charging him with the violation and (ii) he received notice of the violation only one day before tendering his plea.

Before discussing the merits of defendant’s claims, it must be noted that he did not raise the objections below. I believe, though, that defendant’s claims implicate the very authority of the state to bring him to trial. People v New, 427 Mich 482, 491; 398 NW2d 358 (1986). Much like alleged violations of the "180-day rule” then, a guilty plea should not operate to waive the claims. See People v Sickles, 162 Mich App 344, 350-351; 412 NW2d 734 (1987), lv den 429 Mich 898 (1988); People v Wolak, 153 Mich App 60, 69; 395 NW2d 240 (1986). But see People v Rivera, 164 Mich App 670, 671-673; 417 NW2d 569 (1987).

As to defendant’s first claim, I would hold that the twenty-seven-week period between the issuance of the bench warrant (on July 27, 1987) and its execution (on February 16, 1988) was unreasonable on its face. See People v Gunner, 61 Mich App 569, 570; 233 NW2d 87 (1975), lv den 396 Mich 842 (1976); People v Diamond, 59 Mich App 581, 586-587; 229 NW2d 857 (1975), lv den 394 Mich 824 (1975). However, jurisdiction to try the case is not lost if the authorities acted with due diligence in attempting to execute the warrant. People v Miller, 77 Mich App 381, 384; 258 NW2d 235 (1977).

Unfortunately, there is insufficient information in the record, upon which to review this claim. We therefore remand the matter to the trial court for development of an adequate factual record and for a decision in the first instance on whether the authorities acted with due diligence in executing the warrant which charged defendant with the probation violation. If the trial court determines that the warrant was executed with due diligence, defendant’s conviction and sentence are to be affirmed. If the authorities did not act with due diligence, they shall be deemed to have waived the violation (Miller, supra) and defendant’s conviction and sentence are to be vacated and the instant charge dismissed. Jurisdiction will be retained to review the propriety of the trial court’s decision in this regard.

Defendant’s next argument (i.e., that the conviction must be vacated because he received only one day’s notice of the probation violation charge) is without merit. Not only was defendant represented by counsel, but the basis of the charged violation was factually very simple (thus requiring little time to determine the existence of any viable defense). People v Duncan, 154 Mich App 652; 397 NW2d 857 (1986). Having reviewed the transcript of defendant’s pled hearing, we are convinced that he tendered the plea knowingly, understandingly, and voluntarily. Thus, reversal is not required because of the short notice.

Remanded for an evidentiary hearing to determine whether the authorities acted with due diligence in attempting to execute the bench warrant on defendant. Jurisdiction is retained on that issue only.