People v. Robert Lee Moore

21 Mich. App. 126 (1970) 174 N.W.2d 922

PEOPLE
v.
ROBERT LEE MOORE

Docket No. 5,991.

Michigan Court of Appeals.

Decided January 26, 1970.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Samuel J. Torina, Chief Appellate Lawyer, and Patricia J. Pernick, Assistant Prosecuting Attorney, for the people.

Edward P. Echlin, for defendant on appeal.

Before: FITZGERALD, P.J., and McGREGOR and V.J. BRENNAN, JJ.

PER CURIAM.

This is a delayed appeal from a conviction of unarmed robbery.^[1] On August 23, 1965, the defendant withdrew a previously entered plea of not guilty to the charge of armed robbery^[2] and tendered a plea of guilty to the lesser, included offense of unarmed robbery. The trial court accepted the plea and sentenced the defendant to a prison term on September 7, 1965. Court-appointed counsel was present on both occasions.

The defendant contends that his plea is invalid because the trial court failed to conduct an inquiry into the nature of his acts to ascertain the truth of the plea. At the same time, he neither contends that the court's failure to conduct an inquiry resulted in a "miscarriage of justice," nor alleges "such facts as would, if true, substantiate a finding that there was noncompliance (with GCR 1963, 785.3) which resulted in a miscarriage of justice." See People v. Winegar (1968), 380 Mich 719, 733.

GCR 1963, 785.3, like MCLA § 768.35 (Stat Ann 1954 Rev § 28.1058) requires the trial court to "examine the accused * * * and * * * ascertain that the plea was freely, understandingly, and voluntarily made * * *." Included in this requirement is an inquiry into the nature of the defendant's acts to ascertain the truth of the plea. People v. Barrows (1959), 358 Mich 267. The trial court in the present case totally failed to conduct the requisite inquiry. In view of this failure, we reverse the conviction and remand the case for trial. People v. Barrows, supra; People v. Perine (1967), 7 Mich App 292.

We have reviewed the record and find nothing to support a conclusion that the court's noncompliance with the rule and statute was merely a technical one. See People v. Winegar, supra; People v. Stearns (1968), 380 Mich 704; People v. Dunn (1968), 380 Mich 693.

Reversed and remanded.

NOTES

[1] MCLA § 750.530 (Stat Ann 1954 Rev § 28.798).

[2] MCLA § 750.529 (Stat Ann 1969 Cum Supp § 28.797).