252 N.W.2d 518 | Mich. Ct. App. | 1977
PEOPLE
v.
FREEMAN
Michigan Court of Appeals.
*569 Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Research, Training and Appeals, and Arthur N. Bishop, Assistant Prosecuting Attorney, for the people.
Alvin C. Sallen, for defendant.
Before: T.M. BURNS, P.J., and QUINN and M.F. CAVANAGH, JJ.
QUINN, J.
Defendant was charged in three separate cases with the following crimes: two armed robberies, MCLA 750.529; MSA 28.797, and uttering and publishing a forged instrument, MCLA 750.249; MSA 28.446. Negotiations between the prosecutor, defendant and his counsel produced an agreement that defendant would plead guilty to one armed robbery charge and attempted armed robbery, in exchange for a dismissal of the uttering and publishing charge and an agreement with the prosecutor not to file habitual criminal charges against defendant. In addition, a sentencing agreement was reached between defendant's counsel, the prosecuting attorney and the trial judge.
At arraignment February 19, 1976, the plea agreement was fulfilled, and at sentencing March 3, 1976, the sentencing agreement was complied with. Defendant appeals on an issue stated as:
"The court's failure to advise defendant of the mandatory minimum prison sentence for the offense of armed robbery and his ineligibility for probation mandates reversal of defendant's guilty plea conviction."
*570 GCR 1963, 785.7 was amended November 7, 1975, to be effective December 7, 1975. GCR 1963, 785.7(1)(d) requires the trial judge to tell the defendant:
"the mandatory minimum prison sentence, if any, for the offense".
GCR 1963, 785.7(1)(f) requires the trial judge to tell defendant:
"if the plea is to murder, armed robbery or treason, he cannot be placed on probation".
The record before us establishes that neither requirement was met. However, there is no mandatory minimum sentence for armed robbery, see MCLA 750.529; MSA 28.797.
It was error not to advise defendant of his ineligibility for probation. However, on this record it was not reversible error. As a result of the sentence agreement, defendant knew before he pleaded that he was going to prison if he pleaded guilty.
At the end of the plea proceeding, the trial judge inquired of both attorneys, "Are you satisfied I have complied with the court rule?" The attorney for defendant replied, "I'm sure you have but I've never read the court rule." If trial attorneys and trial courts took the time to read the rules, the work of this Court would be reduced.
Affirmed.
M.F. CAVANAGH, J., concurred.
T.M. BURNS, P.J. (concurring).
I agree that the trial court's failure to comply with GCR 1963, 785.7(1)(f) does not warrant reversal in this case.
*571 Had there been no sentencing agreement between the defendant, prosecutor and trial judge, however, failure to impart the advice would have required reversal. Guilty Plea Cases, 395 Mich. 96, 118; 235 NW2d 132 (1975).
