Summary
In People v Hooper, 58 Mich. App. 132; 227 N.W.2d 250 (1975), this Court affirmed a plea-based conviction of "attempted uttering and publishing," which this Court conceded was "an offense not proscribed by law."
Summary of this case from People v. HammondOpinion
Docket No. 19049.
Decided January 28, 1975.
Appeal from Wayne, Thomas J. Foley, J. Submitted Division 1 January 7, 1975, at Detroit. (Docket No. 19049.) Decided January 28, 1975.
Stanley J. Hooper was convicted, on his plea of guilty, of attempted uttering and publishing. Defendant appeals. Affirmed.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Dominick R. Carnovale, Chief, Appellate Department, Patricia J. Boyle, Principal Attorney, Research, Training and Appeals, and Frederick R. Doetsch, Jr., Assistant Prosecuting Attorney, for the people. Francis Zebot, Assistant State Appellate Defender, for defendant.
Before: QUINN, P.J., and BASHARA and R.M. MAHER, JJ.
Defendant was originally charged with uttering and publishing contrary to MCLA 750.249; MSA 28.446. By agreement between defendant and the prosecuting attorney defendant pleaded guilty to the lesser-included offense of attempted uttering and publishing. He was sentenced and he appeals, asserting three alleged reversible errors, namely:
1. Denial of his request to withdraw his plea prior to its acceptance.
2. His plea was to an offense not proscribed by law.
3. The failure of the trial court to ascertain defendant's affirmative acknowledgment of the plea bargain.
If it were not for alleged error 2, supra, we would affirm this conviction by memorandum opinion because the record is contrary to allegations 1 and 3.
We write to the proposition that a bargained plea to an alleged non-existent or paradoxical offense must be vacated because there is no such offense for two reasons.
First, the contention should be, and we hope is, consigned to oblivion. The idea that one who makes a bargain for his own benefit can be released from that bargain because what he bargained for is a non-existent crime is repugnant to any sense of justice, fairness and common sense. If the language, "shall affirmatively appear that the error complained of has resulted in a miscarriage of justice", of MCLA 769.26; MSA 28.1096 has any meaning left, it surely applies to the contention now before us, and we so hold.
We recognize that People v Collins, 380 Mich. 131; 156 N.W.2d 566 (1968), did not involve a bargained plea and is otherwise factually dissimilar to this case of Hooper. However, at page 135 of that opinion is found language which best expresses our reason for holding that defendant's contention is untenable:
"If there is any miscarriage of justice, under these circumstances it can only be one in which the people of the State of Michigan have exacted an insufficient penalty. Putting it another way, if there has been, under these circumstances, a miscarriage of justice, it is a miscarriage which ran to the benefit of the defendants and to the detriment of the people. Of such a miscarriage of justice, only the people can complain."
Secondly, the transcript of the plea taking discloses that defendant obtained a check from a friend which defendant knew was no good, that defendant took that check to Sears Roebuck, presented it with identification in an effort to cash it, and that the police grabbed him before the check was cashed. That constitutes attempted uttering and publishing.
Affirmed.