People v. Sullivan , 38 Mich. App. 208 ( 1972 )

38 Mich. App. 208 (1972) 196 N.W.2d 2

PEOPLE
v.
SULLIVAN

Docket No. 11593.

Michigan Court of Appeals.

Decided January 26, 1972.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, George N. Parris, Prosecuting Attorney, Thaddeus F. Hamera, Chief Appellate Lawyer, and Stephen F. Osinski, Assistant Prosecuting Attorney, for the people.

Gerard F. Wigle, for defendant on appeal.

Before: DANHOF, P.J., and T.M. BURNS and O'HARA,^[*] JJ.

PER CURIAM.

The defendant appeals his plea-based conviction of possession of narcotics. MCLA 335.153; MSA 18.1123. We affirm.

The defendant contends that his plea was involuntary. It is well settled that a claim that a plea is not voluntary, not supported by the record, must first be raised in the trial court by an appropriate motion. People v Horvath, 25 Mich. App. 649 (1970); People v Dorner, 24 Mich. App. 306 (1970); People v Minson, 24 Mich. App. 692 (1970); People v Kenny Smith, 20 Mich. App. 307 (1969); People v Bartlett, 17 Mich. App. 205 (1969).

The defendant contends that his admission of guilt was equivocal. This contention is not supported by the record.

The defendant contends that he did not validly waive his right to trial by jury. The record shows that the defendant was aware of his right to trial by jury, and therefore, he waived that right by pleading guilty. People v Patterson, 25 Mich. App. 246 (1970), People v Sage, 30 Mich. App. 150 (1971). Defendant argues that MCLA 763.3; MSA 28.856 requires that a waiver of a jury trial be in writing. By its terms this statute applies only to trial by a judge and has no application to a guilty plea.

Affirmed.

NOTES

[*] Former Supreme Court Justice, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.