People v. Burian, Docket No. 8586

• Decision Date: 31 March 1971
• Docket Number: Docket No. 8586,No. 3,3
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Sherrill BURIAN, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 652

188 N.W.2d 652

32 Mich.App. 220

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Sherrill BURIAN, Defendant-Appellant.

Docket No. 8586.

Court of Appeals of Michigan, Division No. 3.

March 31, 1971.

Released for Publication July 12, 1971.

William J. Heyns, Grand Rapids, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., James K. Miller, Pros. Atty., Donald A. Johnston, III, Chief Appellate Atty., for plaintiff-appellee.

Before T. M. BURNS, P.J., and FITZGERALD and R. B. BURNS, JJ.

PER CURIAM.

Sherrill Burian was charged with receiving and concealing stolen property with a value of more than $100, M.C.L.A. § 750.535 (Stat.Ann.1971 Cum.Supp. § 28.803). She was arraigned without representation of counsel on September 19, 1969, and her plea of guilty was accepted.

On appeal, defendant contends that the trial court erred in that she was not advised of her right to counsel in accordance with GCR 1963, 785.3(1). At the arraignment, the defendant was examined by the court in the following manner:

'Q. Do you have a lawyer?

'A. No.

'Q. Do you want a lawyer?

'A. No.

'Q. Do you waive your right to a layer?

'A. Yes.'

GCR 1963, 785.3(1) provides:

'Arraignment. If the accused is not represented by counsel upon arraignment,

'Q. Do you waive your right to a lawyer? court shall advise the accused that he is entitled to a trial by jury and to have counsel, and that in case he is financially unable to provide counsel the court will, if accused so requests, appoint counsel for him. If the accused states he will procure counsel or requests that counsel be appointed, a reasonable time thereafter shall be allowed for counsel to consult with the accused before his plea shall be taken.'

The people cite the cases of People v. Stearns (1968), 380 Mich. 704, 158 N.W.2d 409, and People v. Everson (1969), 16 Mich.App. 739, 168 N.W.2d 660 as standing for the proposition that the trial court has substantially complied with the court rule. However, in Stearns, the defendant was informed by the trial court that he had 'a right to have a lawyer' and in Everson the defendant was asked, 'Do you know you are entitled to have (a lawyer)?'

In the case at bar, defendant was in no way informed of her right to have a lawyer. Her subsequent waiver of her right to a lawyer could not, therefore, be considered an intelligent waiver. We find that the Court Rule was not complied with and the plea must, therefore, be vacated.

Reversed and remanded.