People v. Beckner , 92 Mich. App. 166 ( 1979 )

92 Mich. App. 166 (1979) 285 N.W.2d 52

PEOPLE
v.
BECKNER

Docket No. 78-3248.

Michigan Court of Appeals.

Decided July 26, 1979.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Michael W. LaBeau, Prosecuting Attorney, and Dale Lockwood, Assistant Prosecuting Attorney, for the people.

P.E. Bennett, Assistant State Appellate Defender, for defendant on appeal.

Before: DANHOF, C.J., and V.J. BRENNAN and R. CARROLL,^[*] JJ.

PER CURIAM.

Debra Darlene Beckner was charged with uttering and publishing, contrary to MCL 750.249; MSA 28.446. The complaint alleged that the instrument involved was a check in the amount of $128; that the drawer was Monroe County Social Services; that the drawee was Monroe Bank & Trust; that the payees were the defendant and Winston Scheer and that the instrument was endorsed "Debra Beckner" and "Winston Scheer".

On July 29, 1977, the defendant pled guilty to the charge, telling the trial court that Winston Scheer was her landlord and that the check was intended to assist her in paying her rent. She stated that she obtained the check from the drawer by delivery at the drawer's office, endorsed it and signed the name of Scheer without his consent and obtained payment of the instrument, presumably upon presentment at the drawee bank.

The trial court imposed a sentence of 5 to 14 years imprisonment; the defendant appeals as of right.

The statute under which the defendant was charged is MCL 750.249; MSA 28.446, which provides:

"Any person who shall utter and publish as true, any false, forged, altered or counterfeit record, deed, instrument or other writing mentioned in the preceding section, knowing the same to be false, altered, forged or counterfeit, with intent to injure or defraud as aforesaid, shall be guilty of a felony, punishable by imprisonment in the state prison not more than 14 years."

MCL 750.253; MSA 28.450 states:

"Any person who shall utter or pass, or tender in payment as true, any such false, altered, forged or counterfeit note, certificate or bill of credit for any debt of this state, or any of its political subdivisions or municipalities, any bank bill or promissory note, payable to the bearer thereof, or to the order of any person, issued as foresaid, knowing the same to be false, altered, forged or counterfeit, with intent to injure or defraud as aforesaid, shall be guilty of a felony, punishable by imprisonment of not more than 5 years or by fine of not more than 2,500 dollars."

The defendant claims that she should have been charged under the latter more specific statute. We agree.

In People v Hall, 391 Mich. 175; 215 NW2d 166 (1974), a defendant accused of having altered a state treasurer's warrant issued to him for his wages was tried and convicted under the "common utterer" statute, § 249. The Supreme Court reasoned that the specific reference in § 253 to instruments issued by the state or its political subdivisions had the effect of removing the alteration of an instrument issued by the state or its subdivisions from the coverage of § 249, and held that the conviction under that section was invalid.

This Court reached a similar result in a case involving the uttering and publishing of an ADC "check" issued by the state in People v Shears, 84 Mich. App. 175; 269 NW2d 519 (1978).

The prosecution urges that Hall, supra, be restricted to apply only to warrants drawn upon the state treasurer. There is no foundation for this argument. We note that the statutes addressing the forgery and uttering and publishing of public instruments refer not to instruments drawn on public entities but to instruments issued by the state or its political subdivisions. In this case, by the terms of the complaint, the check was issued by Monroe County. Thus, the acts charged against the defendant fall squarely within the more specific statutory provisions. See People v Shears, supra.

The prosecution also asserts that the defendant's claim is waived by her guilty plea. Entry of a guilty plea does not waive the defendant's right to assert that the state never had the power to proceed against her in the first place. That is the case when the charge is brought under an inapplicable statute. See People v Alvin Johnson, 396 Mich. 424, 439-444; 240 NW2d 729 (1976), Blackledge v Perry, 417 U.S. 21; 94 S. Ct. 2098; 40 L. Ed. 2d 628 (1974), People v Parney, 74 Mich. App. 173; 253 NW2d 698 (1977).

Reversed and remanded.

NOTES

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