188 N.W.2d 238 | Mich. Ct. App. | 1971
PEOPLE
v.
McKINLEY
Michigan Court of Appeals.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Kenneth J. Myles, Prosecuting Attorney, for the people.
Jack McKinley, in propria persona.
Before: FITZGERALD, P.J., and HOLBROOK and BRONSON, JJ.
*179 PER CURIAM.
On August 29, 1966, defendant was convicted by a jury for the crime of armed robbery. MCLA § 750.529 (Stat Ann 1970 Cum Supp § 28.797). Defendant was sentenced to serve a term of 9 to 20 years in prison.
On March 16, 1969, defendant filed a motion for a new trial. At the hearing held on March 24, 1969, the trial court, after ascertaining that all parties were in agreement, permitted the information to be amended to include the charge of unarmed robbery,[1] granted defendant's motion for a new trial, and properly accepted defendant's plea of guilty to the charge of unarmed robbery. Defendant was then sentenced to serve from four to 15 years on his plea of guilty to the charge of unarmed robbery. Defendant was credited with time served under the original conviction for armed robbery. Defendant appeals as of right.
Under defendant's first assignment of error it is alleged that defendant's conviction is invalid because he did not have, nor waive, a preliminary examination on the charge of unarmed robbery as required by MCLA § 767.42 (Stat Ann 1970 Cum Supp § 28.982).
We disagree. Defendant's plea of guilty to the charge of unarmed robbery constituted a waiver of the statutory right to a preliminary examination. People v. Losinger (1951), 331 Mich 490, cert den 343 US 911 (72 S Ct 644, 96 L Ed 1327); People v. Tate (1946), 315 Mich 76; People v. Rufus Williams (1970), 23 Mich App 459, 467, fn 11.
Defendant also contends that the proceedings held on March 24, 1969, constituted double jeopardy. The rationale for the constitutional protection against double jeopardy does not come into being *180 when the new proceeding comes at the defendant's own request. Thus, since defendant in the instant case presented the motion for a new trial, he cannot now complain of double jeopardy because the new trial was granted. See Stroud v. United States (1919), 251 US 15 (40 S Ct 50, 64 L Ed 103); People v. Fochtman (1924), 226 Mich 53.
Judgment affirmed.
NOTES
[1] MCLA § 750.530 (Stat Ann 1954 Rev § 28.798).
