People v. Ditto, Docket No. 52680

• Decision Date: 21 October 1981
• Docket Number: Docket No. 52680
• Citation: 110 Mich.App. 654,313 N.W.2d 177
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert DITTO, Defendant-Appellant. 110 Mich.App. 654, 313 N.W.2d 177
• Court: Court of Appeal of Michigan — District of US

Page 177

313 N.W.2d 177

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert DITTO, Defendant-Appellant.

Docket No. 52680.

110 Mich.App. 654, 313 N.W.2d 177

Court of Appeals of Michigan.

Oct. 21, 1981.

Released for Publication Dec. 22, 1981.

[110 MICHAPP 656] Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Edward Reilly Wilson, Principal Atty., Appeals, Detroit, and Janice M. Joyce, Asst. Pros. Atty., for the People.

Chari Grove, Asst. State Appellate Defender, Detroit, for defendant-appellant.

Before BASHARA, P. J., and J. H. GILLIS and V. J. BRENNAN, JJ.

BASHARA, Presiding Judge.

Defendant appeals his plea-based conviction of larceny in a building, M.C.L. § 750.360; M.S.A. § 28.592.

Initially, defendant contends that the prosecutor abused his discretion by charging him under the statute prohibiting larceny in a building, a felony, rather than for simple larceny, M.C.L. § 750.356; M.S.A. § 28.588, which is a misdemeanor.

The argument lacks merit. Michigan's appellate courts have regularly held that where an alleged defendant could have been charged under two different statutes for the same offense, it is not an abuse of discretion to charge the violation under the more harsh of the two statutes. Genesee Prosecutor v. Genesee Circuit Judge, 391 Mich. 115, 215 N.W.2d 145 (1974), Genesee Prosecutor v. Genesee Circuit Judge, 386 Mich. 672, 194 N.W.2d 693 (1972), People v. Swearington, 84 Mich.App. 372, 269 N.W.2d 467 (1978).

Defendant's argument is more properly one for [110 MICHAPP 657] consideration by the Legislature and not this Court.

Defendant also alleges that the trial court did not comply with GCR 1963, 785.7(1)(g)(iii), which requires that the trial court advise a defendant at the plea proceeding that by pleading guilty he waives the right to be presumed innocent until proven guilty. In Guilty Plea Cases, 395 Mich. 96, 122, 235 N.W.2d 132 (1975), the Court held that the court rule has been satisfied where the record reveals that the defendant knew what a trial is and that by pleading guilty he was knowingly and voluntarily giving up the rights incident to trial. Specific wording is not required. Id., 122-124, 235 N.W.2d 132. Review of this record reveals that subrule 7(1)(g)(iii) was satisfied where the court informed the defendant that "the People would have to establish your guilt beyond a reasonable doubt, and if they failed to do that, you would be entitled to acquittal or being found not guilty".

Defendant's remaining allegation of error is also without merit. Since defendant has not alleged that he was subjected to confinement for violation of probation or parole because of his guilty plea, no error requiring reversal occurred due to the trial court's failure to advise the defendant of that eventuality under GCR 1963, 785.7(1)(e). People v. Hunt, 72 Mich.App. 168, 249 N.W.2d 341 (1977).

Affirmed.

J. H. GILLIS, J., concurs.

V. J. BRENNAN, Judge, dissenting.

I respectfully dissent. The facts of this case are that defendant stole four socket sets worth approximately $12.95 from a drug store. In short, defendant was guilty of shoplifting. I have consistently adhered to the position that, under such undisputed facts, the [110 MICHAPP 658] prosecutor abuses his discretion when he overcharges a shoplifter with larceny in a building, a potential four-year felony conviction, rather than with larceny under $100, a 90-day misdemeanor. People v. Carmichael, 86 Mich.App. 418, 272 N.W.2d...