Opinion
Docket No. 10063.
Decided January 28, 1971.
Appeal from Recorder's Court of Detroit, Robert J. Colombo, J. Submitted Division 1 December 22, 1970, at Lansing. (Docket No. 10063.) Decided January 28, 1971.
John Clifton Miller was convicted, on his plea of guilty, of larceny from a person. Defendant appeals. Affirmed.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Dominick R. Carnovale, Chief, Appellate Department, and Arthur N. Bishop, Assistant Prosecuting Attorney, for the people.
George Stone, for defendant on appeal.
Before: DANHOF, P.J., and McGREGOR and QUINN, JJ.
Defendant appeals from his conviction upon a plea of guilty to the offense of larceny from a person. He was originally charged with robbery unarmed, but before his offer of a plea of guilty, a count was added to the information to charge larceny from a person. He now contends, first, that the trial court erred in accepting his guilty plea without first remanding to the magistrate so that a new complaint and warrant on the lesser charge could be issued and preliminary examination had thereon. Second, he claims that his plea was involuntarily given because the bargain made with the prosecutor called for his entry of a plea of guilty to the offense of attempted robbery unarmed carrying a maximum penalty of five years' imprisonment instead of larceny from a person carrying a ten-year maximum. The appellee has filed a motion to affirm the conviction, GCR 1963, 817.5(3).
MCLA § 750.357 (Stat Ann 1954 Rev § 28.589).
MCLA § 750.530 (Stat Ann 1954 Rev § 28.798).
MCLA § 750.92 (Stat Ann 1962 Rev § 28.287).
It is manifest that the first error claimed is so unsubstantial as to require no argument or formal submission. With regard to the second error, we note that no motion to withdraw the plea was made in the trial court. During the plea proceedings, defendant affirmatively indicated his desire to plead guilty to the charge of larceny from a person. Without the record which a motion to withdraw the plea would have provided, it is impossible for us to review defendant's claim of an unfulfilled bargain. In re Valle (1961), 364 Mich. 471.
Involuntariness of the guilty plea may not be raised for the first time on a direct appeal of a judgment of conviction. People v. Barron (1970), 27 Mich. App. 379; People v. Dorner (1970), 24 Mich. App. 306; People v. Kenny Smith (1969), 20 Mich. App. 307.
Motion to affirm the conviction is granted without prejudice to the defendant to file such a motion in Detroit recorder's court.