People v. Freeby
People v. Freeby
Opinion of the Court
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,
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
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 is 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.
MCLA 750.92; MSA 28.287 and MCLA 750.110; MSA 28.305.
MCLA 750.535; MSA 28.803.
Concurring Opinion
(concurring). In this case it appears that the defendant, while represented by counsel, entered into a valid plea bargain with the people and entered a plea of guilty in complete agreement with the plea bargain. The trial court
Because of the circumstances in this case, this writer would like to see the case affirmed. However, because of the order of the Supreme Court in People v Shekoski, 393 Mich 134; 224 NW2d 656 (1974), I very reluctantly concur in the result called for in the opinion of my brothers.
MCLA 763.3; MSA 28.856, and MCLA 763.4; MSA 28.857.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.