195 N.W.2d 780 | Mich. Ct. App. | 1972
PEOPLE
v.
STEINHOFF
Michigan Court of Appeals.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Robert F. Leonard, Prosecuting Attorney, and Donald A. Kuebler, Chief Assistant Prosecuting Attorney, for the people.
John J. Hermann, for defendant on appeal.
Before: QUINN, P.J., and J.H. GILLIS and VAN VALKENBURG,[*] JJ.
*136 PER CURIAM.
Defendant appeals his conviction by jury of carrying a dangerous weapon with unlawful intent. MCLA 750.226; MSA 28.423.
Defendant, through appointed appellate counsel, poses the issue for our determination as follows: Did the trial court abuse its discretion by not allowing the attorney for defendant adequate time to offer a defense of insanity, where it clearly was the only appropriate defense available?
The record reveals that the trial court ordered the defendant committed to the custody of the Center for Forensic Psychiatry pursuant to MCLA 767.27a(3); MSA 28.966(11) (3), for examination in order to determine his competency to stand trial. Thereafter it was determined, in accordance with the above examination, that the defendant was competent to stand trial.
Subsequently, at the commencement of trial, defense counsel filed a motion for leave to present the defense of insanity. The required four-day notice for such defense, MCLA 768.20, 768.21; MSA 28.1043, 28.1044, was not given. Following a conference between defendant and his attorney, a statement was made on the record to the effect that he was withdrawing his motion for leave to present the defense of insanity. The record reveals that defendant insisted that his counsel withdraw his claim of insanity at this point in the proceedings. Counsel's withdrawal of such motion at the request of the defendant had the effect of leaving the record as it stood prior to the filing of the motion. 56 Am Jur 2d, Motions, Rules and Orders, § 22, p 18. The trial court, therefore, had no occasion to exercise its discretion to rule on the admissibility of evidence of insanity. MCLA 768.21; MSA 28.1044. The *137 question as to abuse of discretion is, therefore, not before this Court for review.
Affirmed.
NOTES
[*] Former circuit judge, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.