People v. Jarboe

• Decision Date: 29 March 1968
• Docket Number: No. 2,Docket No. 2412,2
• Citation: People v. Jarboe, 157 N.W.2d 321, 10 Mich.App. 476 (Mich. App. 1968)
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Leo JARBOE, Defendant-Appellant
• Court: Court of Appeal of Michigan

Page 321

157 N.W.2d 321

10 Mich.App. 476

PEOPLE of the State of Michigan, Plaintiff-Appellee, v.Leo JARBOE, Defendant-Appellant.

Docket No. 2412.

Court of Appeals of Michigan, Division No. 2.

March 29, 1968.

Jerome A. Susskind, Badgley, Domke, Morrison, McVicker & Marcoux, Jackson, for appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol.Gen., Lansing, James G. Fleming, Pros.Atty., Jackson County, Jackson, for appellee.

Before T. G. KAVANAGH, P.J., and GILLIS and McGREGOR, JJ.

McGREGOR, Judge.

A warrant authorized by an assistant prosecuting attorney of the county was issued by a justice of the peace upon a complaint charging the appellant and another person with the crime of forgery ¹ and uttering and publishing a forged instrument.²

On February 4, 1964, the appellant was arraigned in circuit court, advised of his rights, waived the reading of the information, stood mute, a plea of not guilty was entered, and at that time the court appointed counsel for the appellant.After three or four conferences between the appointed counsel and the appellant at the county jail, on February 21, 1964, the appellant with his counsel appeared before the circuit court.Appellant's counsel informed the court that his client wished to plead guilty to the charge of uttering and publishing a forged instrument, and the plea was accepted by the court.The charge of forgery was dropped.At the time of sentencing, the appellant's counsel was not in court because of the hospitalization of his wife; however, the appellant elected to proceed without counsel after being advised by the court that he could choose to wait until such time as his counsel was available.

Appellant now claims error on two theories.The first theory is that the warrant issued by the justice of the peace was improper, since the local prosecuting attorney did not personally authorize its issuance, in accordance with C.L.S.1961, § 774.4(Stat.Ann.1963 Cum.Supp. § 28.1195), and that, therefore, the entire proceedings were void.The second theory is that the appellant was not properly advised of his rights in accordance with GCR 1963, 785.3 at the time his plea was accepted or at the time of sentencing.

The first contention, that the warrant was improper because the authorization was signed by an assistant prosecutor rather than personally by the prosecuting attorney is without merit.The statute controlling the duties of assistant prosecuting attorneys is C.L.1948, § 49.42(Stat.Ann.1961 Rev. § 5.802):

'Any such assistant prosecuting attorney shall hold his office during the pleasure of the prosecuting attorney appointing him, perform any and all duties pertaining to the office of prosecuting attorney at such time or times as he may be required so to do by the prosecuting attorney and during the absence or disability from any cause of the prosecuting attorney, but he shall be subject to all the legal disqualifications and disabilities of the prosecuting attorney, and shall before entering upon the duties of his office take and subscribe the oath of office presecribed by the constitution of this state and file the same with the county clerk of his county. * * *'

The appellant would have us hold that this statute allows assistant prosecuting attorneys to perform the duties of the prosecuting attorney only during the absence or disability of the prosecutor.The statute, however, clearly allows an assistant prosecuting attorney to perform such duties 'as he may be required so to do' pertaining to the office of the prosecuting attorney.The fact that assistant prosecuting attorneys also may perform duties of the prosecutor in the absence or disability of the prosecutor does not limit the assistant prosecuting attorney's authority to act when the prosecutor is not absent or under a disability.

Appellant's second contention involves the interpretation of GCR 1963, 785.3, the applicable provisions of which are as follows:

'.3.Arraignment and Sentencing.In every prosecution wherein the accused is charged with a felony, the trial court shall conform to the following practice:

'(2) Imposing Sentence.If the accused pleads guilty, after such plea and before sentence the court shall inform the accused of the nature of the accusation and the consequence of his plea; and regardless of whether he is represented by counsel, the court shall examine the accused, not necessarily under oath, and as a condition of accepting the plea of guilty and imposing sentence shall ascertain that the plea was freely, understandingly, and voluntarily made, without undue influence, compulsion, or duress, and without promise of leniency.Unless the court determines that the plea of guilty was so made, it...