People v. Peterson

233 N.W.2d 250, 62 Mich. App. 258, 79 A.L.R. 3d 1072, 1975 Mich. App. LEXIS 1054
CourtMichigan Court of Appeals
DecidedJune 23, 1975
DocketDocket 19746
StatusPublished
Cited by52 cases

This text of 233 N.W.2d 250 (People v. Peterson) 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. Peterson, 233 N.W.2d 250, 62 Mich. App. 258, 79 A.L.R. 3d 1072, 1975 Mich. App. LEXIS 1054 (Mich. Ct. App. 1975).

Opinions

O’Hara, J.

This is an appeal of right from a plea of guilty to larceny from an automobile. MCLA 750.356a; MSA 28.588(1). Defendant was sentenced to 180 days in jail, 160 immediately and 20 days when directed. No credit was given for the 14 days she had served at the time of sentence and she was placed on 5 years probation.1 Manifestly the [261]*261sentence was infirm and the case must be remanded for resentencing or the sentence corrected by this Court. We opt for the former because other issues are involved.

The main thrust of appellant’s argument is that the conditions of probation are onerously unreasonable. Her counsel on appeal attacked them with a vigor and intensity which bespoke deep conviction. She characterized them as impossible of performance, impermissibly vague and constitutionally infirm as violative of due process.

Before addressing ourselves to the multiple assignments of error, we must again make clear that we are not a sentence review board.

We are not empowered to substitute our judgment for that of the trial judge on lawful conditions of probation [People v Higgins, 22 Mich App 479; 177 NW2d 716 (1970)] however much we may regard them as unduly harsh. Thus our discussion as to the conditions of probation will of necessity be more limited than appellant seeks.

In the sequence of assignments of error, the first is thus phrased in appellant’s brief:

'!Appellant’s plea of guilty to larceny from an automobile was coerced by the threat of prosecution on a charge for which probable cause to bind her over did not exist and appellant is therefore entitled to a new trial.”

This is in a sense a two-pronged argument that is developed as follows. There was insufficient evidence adduced at the preliminary examination to justify binding appellant over on the original charge of unlawfully driving away a motor vehicle. MCLA 750.413; MSA 28.645. Having thus been improperly bound over and thereafter tendering a plea of guilty to the offense of larceny from an [262]*262automobile appellant was, in fact, or in legal effect, coerced into pleading guilty to the lesser charge. Appellant had no real choice. This being the case appellant claims that the assignment of error was raised to jurisdictional level. This being so her plea of guilty did not waive all error, but only all nonjurisdictional error. We are unable to agree with appellant’s contentions. The fallacy in the position is the all too frequent confusion between a want of jurisdiction and error in the exercise thereof. See Buczkowski v Buczkowski, 351 Mich 216, 221-222; 88 NW2d 416 (1958). In this case, the district judge had unquestioned jurisdiction over the offense charged and the persons charged therewith. If he exercised this jurisdiction improperly the circuit judge was empowered to dismiss or remand. The misexercise does not strip either court of jurisdiction. See Justice Levin’s discussion in Genesee Prosecutor v Genesee Circuit Judge, 391 Mich 115; 215 NW2d 145 (1974).

We find no jurisdictional infirmity. We follow the well-established rule that a plea of guilty waives all nonjurisdictional defects. People v Potts, 45 Mich App 584; 207 NW2d 170 (1973), People v Killingbeck, 49 Mich App 380; 212 NW2d 256 (1973).

The second question presented is:

"Where the trial judge failed to inform appellant that probation as a sentence can contain severe restrictions and conditions which if violated can result in a maximum sentence greater than that prescribed by statute, was appellant’s plea not understandingly made and must her conviction be reversed?”

Discussion of this issue is fruitless. There is no case law directly in point cited. We can find none independently. If this requirement is to be written [263]*263into our criminal procedure it will have to be done by the Supreme Court under its rule-making power, or possibly by the Legislature in the statute authorizing probation. We do not find the error claimed meritorious.2

Third, appellant asserts that:

"Appellant’s guilty plea was not understandingly and voluntarily made where the trial judge elicited from the appellant facts of the offense charged before advising her of the constitutional rights she was waiving by entering her plea. ”

People v Snyder, 53 Mich App 249; 218 NW2d 770 (1974), is not controlling (even if it stands for what the appellant contends). The plea in Snyder was taken before the new GCR 1963, 785. Appellant can’t have it both ways. The Supreme Court has made a virtual straitjacket out of 785, supra, as far as the trial bench and this Court is concerned. Its language must be followed literally. Failure to do so is reversible error. We are not disposed to laminate the former rule on the one presently in force. The claim of error is not meritorious. We find no requirement of sequence in complying with its provisions.

Issue 4 concerning the failure to grant jailtime credit was disposed of earlier. It was error, mandating remand for resentencing or correction at the appellate level. We stated the reason for our choice.

Assignment of error number 5 is concerned with [264]*264the claim of vagueness to the constitutional level of denial of due process. Frankly, the issue concerns us. One term singled out for attack is "antisocial conduct”. That term was both a condition contained in the order of probation and a statutory ground for revocation or termination of probation as set forth in MCLA 771.4; MSA 28.1134. By itself, we agree it would be vague to the point of risibility for a prosecutor to file an information that "so and so” on such and such a date did commit "anti-social conduct” and expect an accused to plead to it. What is "antisocial” in an exclusive club in a sedate suburb and what are perfectly acceptable mores in a lusty metropolitan gathering place can be as far apart as the poles. We have read, to the point of ocular exhaustion, cases from Maine to Texas and California to Florida. While we are somewhat apprehensive as to a probationer being sufficiently apprised of the conditions of probation when he is proscribed from engaging in antisocial conduct,3 we cannot ignore the basic fact that many jurisdictions other than our own impose and sustain conditions on a probationer which, in our view, are no more objectionable in terms of due process than the complained-of provision here involved.4 We add a caveat. If viola[265]*265tion of this provision is charged the specifics of the antisocial conduct will have to be set out in concrete terms capable of understandable and definitive evaluation. Anything less would raise grave due process questions as to the adequacy of notice.

Assignment of error 6 challenges what is denominated the "blanket search and seizure” provision in the order of probation.5 It provides:

"That the person of probationer, and any and all premises and vehicles, owned or occupied by said probationer, shall be open to search at any and all times by the probation officer and by any law enforcement officers without a search warrant therefor.”

We strike it down.

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Cite This Page — Counsel Stack

Bluebook (online)
233 N.W.2d 250, 62 Mich. App. 258, 79 A.L.R. 3d 1072, 1975 Mich. App. LEXIS 1054, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-peterson-michctapp-1975.