People v. Nelson

Michigan Court of Appeals

People v. Nelson

170 N.W.2d 846, 18 Mich. App. 177

CourtMichigan Court of Appeals

DecidedOctober 15, 1969

DocketDocket 5,235

StatusPublished

Cited by7 cases

This text of 170 N.W.2d 846 (People v. Nelson) 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.

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People v. Nelson, 170 N.W.2d 846, 18 Mich. App. 177 (Mich. Ct. App. 1969).

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Danhoe, J.

Defendant-appellant pled guilty on January 3, 1966, in the circuit court for Missaukee [179]*179county to a violation of CL 1948, § 750.530 (Stat Ann 1954 Bev § 28.798), committing an assault and robbery not being armed with a dangerous weapon. On February 9, 1966, defendant was sentenced to 2 years’ probation and ordered to make restitution. Subsequently, at a hearing in the same court on December 20, 1967, the probation was revoked and the defendant was sentenced to 3 to 15 years’ imprisonment on the original charge. Defendant made a motion to vacate his guilty plea which was denied by the circuit court on July 15,1968 and defendant now appeals that decision.

The motion filed by the defendant addresses itself to the discretion of the court. People v. Vasquez (1942), 303 Mich 340. Since the motion is made after conviction and sentence it must be based upon a showing of a miscarriage of justice. People v. Winegar (1968), 380 Mich 719. Defendant, being convicted, no longer enjoys the presumption of innocence, and he has a burden of showing something more than technical noncompliance with the rules. In fact, he must show that there has been a miscarriage of justice. People v. Winegar, supra.

We are satisfied from a review of this record that the defendant intelligently and knowingly waived his right to counsel well knowing that he could have had counsel, either of his own choosing or court appointed. Examination of the transcript of the arraignment of the defendant and of a co-defendant, who was arraigned at the same time and on the same charge, reveals that the circuit judge advised the defendant of his right to an attorney, and advised bim of his right to either proceed at the present time, or wait for an attorney. The defendant chose to proceed and thereby waived his right to an attorney. People v. Dunn (1968), 380 Mich 693. Further, the •trial judge on several occasions advised the defend[180]*180ant lie would be subject to sentence and a possible jail term in the State prison if he entered a plea of guilty. This was sufficient to advise the defendant of the consequence of his plea. People v. Menton (1967), 7 Mich App 267; People v. Jarboe (1968), 10 Mich App 476; and People v. Dunn, supra.

Defendant further alleges that he was not advised of his right to counsel at the time he was placed on probation. In this case the question is one of non-importance since the defendant was represented by counsel, of his own choosing, at the time his probation was revoked and the prison sentence imposed.

The defendant, neither in his brief, nor in his motion for new trial, contends that he is in fact innocent and that there has been a patent miscarriage of justice. It is incumbent upon the defendant to show that an injustice has occurred. People v. Winegar, supra; People v. Collins (1968), 380 Mich 131.

Affirmed.

Holbrook, J., concurred.

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Danhoe, J.

Defendant-appellant pled guilty on January 3, 1966, in the circuit court for Missaukee [179]*179county to a violation of CL 1948, § 750.530 (Stat Ann 1954 Bev § 28.798), committing an assault and robbery not being armed with a dangerous weapon. On February 9, 1966, defendant was sentenced to 2 years’ probation and ordered to make restitution. Subsequently, at a hearing in the same court on December 20, 1967, the probation was revoked and the defendant was sentenced to 3 to 15 years’ imprisonment on the original charge. Defendant made a motion to vacate his guilty plea which was denied by the circuit court on July 15,1968 and defendant now appeals that decision.

The motion filed by the defendant addresses itself to the discretion of the court. People v. Vasquez (1942), 303 Mich 340. Since the motion is made after conviction and sentence it must be based upon a showing of a miscarriage of justice. People v. Winegar (1968), 380 Mich 719. Defendant, being convicted, no longer enjoys the presumption of innocence, and he has a burden of showing something more than technical noncompliance with the rules. In fact, he must show that there has been a miscarriage of justice. People v. Winegar, supra.

We are satisfied from a review of this record that the defendant intelligently and knowingly waived his right to counsel well knowing that he could have had counsel, either of his own choosing or court appointed. Examination of the transcript of the arraignment of the defendant and of a co-defendant, who was arraigned at the same time and on the same charge, reveals that the circuit judge advised the defendant of his right to an attorney, and advised bim of his right to either proceed at the present time, or wait for an attorney. The defendant chose to proceed and thereby waived his right to an attorney. People v. Dunn (1968), 380 Mich 693. Further, the •trial judge on several occasions advised the defend[180]*180ant lie would be subject to sentence and a possible jail term in the State prison if he entered a plea of guilty. This was sufficient to advise the defendant of the consequence of his plea. People v. Menton (1967), 7 Mich App 267; People v. Jarboe (1968), 10 Mich App 476; and People v. Dunn, supra.

Defendant further alleges that he was not advised of his right to counsel at the time he was placed on probation. In this case the question is one of non-importance since the defendant was represented by counsel, of his own choosing, at the time his probation was revoked and the prison sentence imposed.

The defendant, neither in his brief, nor in his motion for new trial, contends that he is in fact innocent and that there has been a patent miscarriage of justice. It is incumbent upon the defendant to show that an injustice has occurred. People v. Winegar, supra; People v. Collins (1968), 380 Mich 131.

Affirmed.

Holbrook, J., concurred.

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170 N.W.2d 846, 18 Mich. App. 177, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-nelson-michctapp-1969.

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