DocketNumber： Docket 12991
Citation Numbers： 208 N.W.2d 219, 46 Mich. App. 377, 1973 Mich. App. LEXIS 1211
Judges： Lesinski, Holbrook, Adams
Filed Date： 4/24/1973
Status： Precedential
Modified Date： 10/19/2024
Michigan Court of Appeals.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Donald A. Burge, Prosecuting Attorney, and Stephen M. Wheeler, Assistant Prosecuting Attorney, for the people.
*378 John P. Doerr, for defendant on appeal.
Before: LESINSKI, C.J., and HOLBROOK and ADAMS,[*] JJ.
LESINSKI, C.J.
Defendant appeals his plea-based conviction of breaking and entering, MCLA 750.110; MSA 28.305. In accepting the plea the trial judge informed the defendant, a 17-year-old, that if he did not plead guilty he would have the right to a trial; however, the trial judge failed to inform the defendant that he had a right to a trial by jury or by the court without a jury. This was error. People v Jaworski, 387 Mich. 21 (1972).
It cannot be said that defendants in criminal trials could be presumed to know of a right to trial by jury or by the court without a jury. A knowing, understanding, and voluntary waiver requires the right to be unequivocally explained. Where it is not done, the law presumes no waiver from a silent record. Boykin v Alabama, 395 U.S. 238; 89 S. Ct. 1709; 23 L. Ed. 2d 274 (1969).
That the right to trial and right to trial by jury are substantially different, no one could argue. See Duncan v Louisiana, 391 U.S. 145; 88 S. Ct. 1444; 20 L. Ed. 2d 491 (1968). This is precisely the reason we reverse.
Reversed and remanded.
All concurred.
[*] Former Supreme Court Justice, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.