People v. Fields

Full title: PEOPLE v FIELDS

Court: Michigan Court of Appeals

Date published: Sep 8, 1976

71 Mich. App. 232 (Mich. Ct. App. 1976)

247 N.W.2d 362

Opinion

Docket No. 26337.

Decided September 8, 1976.

Appeal from Recorder's Court of Detroit, Dalton A. Roberson, J. Submitted June 10, 1976, at Detroit. (Docket No. 26337.) Decided September 8, 1976.

Robert H. Fields was convicted, on his plea of nolo contendere, of felonious assault. Defendant appeals. Affirmed.

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.

Michael P. O'Neill, for defendant.

Before: J.H. GILLIS, P.J., and T.M. BURNS and W. VAN VALKENBURG,^_ JJ.

_ Former circuit judge, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.

J.H. GILLIS, P.J.

On June 13, 1975 defendant pled nolo contendere to the crime of felonious assault, MCLA 750.82; MSA 28.277, which plea the court accepted. Following sentence, defendant appeals.

One issue is raised for our consideration: Was the defendant's plea of nolo contendere made in conformance with GCR 1963, 785.7(3)(d)?

An examination of the record discloses that the trial court complied with these requirements in that the court conducted a hearing establishing substantial support for a finding that the defendant was in fact guilty of the offense to which he offered the plea of nolo contendere.

Affirmed.

W. VAN VALKENBURG, J., concurred.

T.M. BURNS, J. (dissenting).

Defendant pled nolo contendere to felonious assault.

Defendant claims on appeal that the trial court's acceptance of the plea was reversibly erroneous for failure to comply with GCR 1963, 785.7(3)(d). I agree.

The court rule in effect at the time of the plea, GCR 1963, 785.7(3)(d), read in part as follows:

"[T]he court may not accept a plea of nolo contendere unless there has been or the judge thereupon conducts a hearing establishing substantial support for a finding that the defendant is in fact guilty of the charged offense or the offense to which he is offering the plea of nolo contendere * * *."

The trial court did not conduct a hearing establishing substantial support for a finding that the defendant was in fact guilty of felonious assault. The sole factual basis for the plea was provided by the prosecutor reading into the record an unsworn statement of unknown origin in which it was alleged that the defendant beat his wife. No witnesses were presented, no testimony was given, no prior transcript was introduced. In short there was no factual basis for the plea. Reversal is mandated. People v Spann, 60 Mich. App. 48; 230 N.W.2d 302 (1975), People v Curry, 48 Mich. App. 545; 210 N.W.2d 791 (1973).

I would reverse and remand for a new trial.