People v. Mast
341 N.W.2d 117
Mich. Ct. App.
1983
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*1 (ON REHEARING) PEOPLE v MAST 4, 1982, Rapids.— Docket No. 60255. Submitted November Grand rehearing September Decided June 1983. filed 13, 1983. Warren Mast was convicted of welfare of fraud an amount in jury Court, of $500 excess a trial in Eaton Circuit Deming, jury Hudson E. J. At that, defendant moved to the basis charging county department him with failure to tell the of "changes social about services his circumstances which relief’, would decrease the need for the information was consti- tutionally infirm it failed to charge against defendant of the him. The motion was denied. appealed Appeals reversed, holding and the Court of process language defendant was denied due because the of failed, the information to inform the defendant of the factual charge. App people basis sought rehearing, granted. rehearing, a which was held: Therefore, 1. made. may be

conviction reversed based on the denial of the motion 2. Manifest has not been shown. The defendant indicated that he of understood substance waived a examination and neither an nor a amended information particulars being surprised bill of and made no claim or of charge. misled as to the factual support 3. The fails to record defendant’s claim that he was unfairly prejudiced by of reason the fact that the trial court him stand so deter- before that the could mine whether or defendant reason reading twice. J., M. that the dissented. would hold informa- References for Points in Headnote 2d, Jur Am Criminal Law 453. § 2d, Appeal 5 Am Jur and Error 835. § Opinion of the Court sufficiently apprise nature of the tion did therefore, deprived that, He would reverse. of law. — — To Infor- Orders Motion Quash Motions and Law Criminal *2 mation. it information on basis that an A charges apprise him is of the fails untimely is and defen- sworn when made ground charges may reversed conviction on dant’s erroneously only where reversal is the motion was (MCL 767.76; necessary MSA a manifest to correct 28.1016). Frank Louis J. General, J. Kelley, Attorney F. Berger, Paul General, Caruso, Solicitor Prose- Sauter, Assistant L. Jeffrey and cuting Attorney, people. Prosecuting Attorney, Stiles), Charles Stiles & Associates (by appeal. Rehearing Mackenzie, P.J., R. Maher and M. and Before: Simon,* C. JJ. W.

Mackenzie, aby P.J. Defendant was convicted fraud”, 400.60(2); MSA jury of "welfare 16.460(2). proba- sentenced to five years tion, appeals right. as of in erred

Defendant contends information, to quash his motion denying him suffi- which defendant claims did motion, him. The charges against ciently timely. raised after reverse, there- may MSA 28.1016. We fore,

* Appeals assignment. judge, sitting Circuit Court of Reh) (On Mast Opinion op the Coukt Collins, (1968); NW2d Peo- Laslo, App 257; ple 259 NW2d 448 Defendant waived a examination, which the facts underlying charge would nec- essarily have been disclosed. Defendant also arraignment waived circuit court on the infor- mation, and the circuit court file contains a docu- both signed ment his counsel the following which includes representation: undersigned attorney "The defendant and hereby acknowledge that copy defendant has received a explained has read or it read or defendant, understands the substance of and (Emphasis circuit court open waives court.” added.) pretrial the circuit court file *3 following the contains statement: hereon, "Prosecutor will list the which he proposes to offer at trial: (available physical "a. All exhibits for inspection by upon request); defense counsel of written Redetermination Eligibility form; Payroll checks; Michigan State of warrant; Report; Treasurer’s Document Examiner Village of Sunfield Employment/Payroll Records”. Even if defendant and his counsel did not bother actually exhibits, to examine proposed the the list clearly indicates that changed circumstances to which the information refers involve defen- dant’s employment with the Village of Sunfield.

At pretrial conference, counsel for defendant acknowledged trial court’s that there were no motions be to resolved before trial. Defendant’s motion to quash the information was made at after was 613 128 Mich op the Court 767.76; MSA untimely. therefore Schultz, 114, 116-117; 48 NW People v 479, 486; 64 Hawkins, (1891); No written NW motion was filed, and, oral ever he had re- made, complained that prosecutor that requested never ceived no notice. amended, for a never moved definite statement or for a more of particulars bill in any that he was claimed never to the factual misled surprised or way for the continuance charge, and never if he 28.1016 allow 767.76; MSA would which in fact misled. that defendant foregoing shows him and that factual basis prosecutor and the trial court led the problem no there was believe before suggests The record information. with the the informa- the motion making delay tactic. dilatory tion was a deliberate 343; 51 Mortiga, 27 S Ct In Serra US (1907), on which the complaint L Ed 571 essential omitted an conviction was based criminal never- Supreme Court of the crime. element had not been held that defendant theless court refused though even the lower process, due complaint be- sufficiency to consider Serra timely objection. made no cause defendant due was not denied that defendant shows here. Defen- under the circumstances 4; 299 dant relies on (1941), that defen- proposition for the NW *4 factual basis of knowledge dant’s actual him is irrelevant to whether charge identifies However, process. him due him to afford against by Maher, M. Dissent J. defendant made a the position and the Court not in the determining, here, whether manifest injustice occurred. 299 Mich 2. Under the circum- case, stances in the instant we discern no manifest remaining

Defendant’s claims of error with- are judge unfairly preju- out merit. The trial did not standing up jury. dice defendant him before the judge asked defendant to stand so that he could determine whether knew him. Nor judge unfairly prejudice did the trial reading the information to the twice. The judge made it clear that evi- guilt. dence Simeon, J.,

C. W. concurred. (dissenting). respectfully R. M. J. I dis- sent.

I remain unconvinced that this case was incor- rectly brought decided first before this Court. For the reasons set forth our earlier opinion, I would hold that the information did not sufficiently apprise the defendant of the nature of charge depriving him, him process of law.