144 Mich. App. 187 | Mich. Ct. App. | 1985
Lead Opinion
Defendant was convicted on his pleas of guilty of larceny in a building, MCL 750.360; MSA 28.592, and of being a third-time felony offender, MCL 769.11; MSA 28.1083. He was sentenced to a term in prison of from five to eight years and appeals from his convictions as of right. We affirm.
Defendant submitted both guilty pleas at the same proceeding. He argues on appeal that his habitual offender conviction should be set aside because the trial court failed to separately advise him under GCR 1963, 785.7(l)(c). While we agree that in accepting a plea of guilty to an habitual offender charge the trial court must advise the
Affirmed.
Dissenting Opinion
(dissenting). I respectfully dissent.
In People v Brownridge, 414 Mich 393; 325 NW2d 125 (1982), the Court held that a plea of guilty to an habitual offender charge can only be accepted after compliance with the procedures specified in GCR 1963, 785.7 for acceptance of pleas of guilty. An habitual offender charge, however, does not charge a distinct criminal offense; conviction results merely in increased punishment for the underlying felony. People v Hatt, 384 Mich 302, 306-307; 181 NW2d 912 (1970); People v Brownridge, supra, 414 Mich 397.
A recital of rights by a judge to a defendant may suffice as a recital of rights by the same judge to
The decision which the majority purports to follow, People v Voss, 133 Mich App 73; 348 NW2d 37 (1984), exposes the fallacy in the majority’s argument. The Voss panel explained, at 133 Mich App 75-77:
"After the factual basis for the original charge was established, the trial court informed defendant that:
" 'All the constitutional rights that I have gone over with you also apply to the supplemental charge. Do you understand that Mr. Voss?’
"The defendant replied affirmatively.
"In the case at bar, we believe that the single full*191 recital of rights to defendant and the court’s statement to defendant that those rights applied to the supplemental charge constituted compliance with the mandates of Brownridge, supra. There was no error.” (Emphasis added.)
Without a statement like that on which the Voss panel relied, there is no reason to suppose that defendant drew the correct conclusion. Nothing said by the circuit court here suggested that the rights it recited applied to the habitual offender charge.
The majority’s reliance on defendant’s plea bargain and representation by counsel is misplaced. No authority indicates that a plea bargain renders harmless a failure to inform defendant of the rights applicable at trial, or allows us to assume that the defense counsel informed defendant off the record of rights omitted by the judge.
I would reverse defendant’s conviction as an habitual offender.