People v. Skowronek

• Decision Date: 05 December 1974
• Docket Number: No. 2,Docket No. 15971,2
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. John Richard SKOWRONEK, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 74

226 N.W.2d 74

57 Mich.App. 110

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. John Richard SKOWRONEK, Defendant-Appellant.

Docket No. 15971.

Court of Appeals of Michigan, Division No. 2.

Dec. 5, 1974.

Released for Publication Feb. 20, 1975.

Nicholas R. Hosteller, Mt. Clemens, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., George N. Parris, Pros. Atty., Thaddeus F. Hamera, Chief Appeallate Lawyer, for plaintiff-appellee.

Before LESINSKI, C.J., and BRONSON and VanVALKENBURG,* JJ.

LESINSKI, Chief Judge.

The defendant, John Richard Skowronek, was convicted by a jury of armed robbery, M.C.L.A. § 750.529; M.S.A. § 28.797. He appeals as of right. This case arises out of an armed robbery of a store, operated by the Kowalski Sausage Company in Warren, Michigan, on March 19, 1971. A police officer patrolling in the vicinity of the store followed the defendant after the robbery and made his arrest. At trial, three Kowalski employees and one customer identified the defendant as the man who had robbed the store.

The defendant's most important allegations of error on appeal result from the extended and complex procedural course this case followed. The defendant was originally arriagined on a charge of armed robbery on March 20, 1971. He waived preliminary examination on April 15. On June 4, defendant pled guilty to an added count of assault with intent to rob being armed, M.C.L.A. § 750.89; M.S.A. § 28.284. He was sentenced to 8 to 15 years in prison. More than one year later, on June 30, 1972, the Macomb County Circuit Court granted defendant a new trial on the ground that his guilty plea had been improperly accepted under People v. Jaworski, 387 Mich. 21, 194 N.W.2d 868 (1972).

Following the circuit court's decision, the prosecutor, on July 20, 1972, again filed an information against the defendant, charging him with armed robbery. Trial was set for September 13. On August 21, defense counsel moved in the circuit court for a preliminary examination. On August 28, the trial court denied this motion on the basis that the defendant had previously waived examination. Defense counsel subsequently moved to dismiss the information on the grounds that reprosecution for armed robbery violated the ban against double jeopardy. The trial court, following the decisions of this Court, also rejected that motion.

The defendant's first contention on appeal is that the trial court erred in denying his request to remand the case for a preliminary examination.

The defendant's right to preliminary examination derives from M.C.L.A. § 767.42; M.S.A. § 28.982, which states:

'No information shall be filed against any person for any offense until such person shall have had a preliminary examination therefor * * * unless such person shall waive his right to such examination.'

The defendant does not contest the validity of his waiver of examination prior to his original guilty plea. Thus, his case is meritorious only if the above statute requires that he receive a preliminary examination prior to renewal of the information against him or if the trial court should have allowed him to withdraw his waiver of examination.

The sole fact that a new information was filed against the defendant does not automatically entitle him to a preliminary examination. What the statute requires is that a defendant be allowed examination upon the particular offense charged, and once an examination is had or examination waived on that charge the statute is satisfied. In this case, because the new information contained only a charge identical to that contained in the first information, the defendant was not entitled to a preliminary examination on the new information filed.

The defendant's argument on the right to a preliminary examination may also be taken to mean that the trial court should have allowed him to withdraw his waiver. No cases seem to have considered whether, or under what circumstances, a defendant may withdraw his prior waiver of a preliminary examination.

The cases which deal with withdrawals of waivers of other rights indicate that the right of a defendant to withdraw his waiver is not absolute, but that it depends upon the importance of the rights involved and the justification asserted for the withdrawal. See, E.g., People v. Zaleski, 375 Mich. 71, 133 N.W.2d 175 (1965); People v. Bencheck, 360 Mich. 430, 104 N.W.2d 191 (1960); People v. Winfrey, 41 Mich.App. 139, 143--44, 199 N.W.2d 663, 665 (1972); State v. Mathis, 39 Wis.2d 453, 159 N.W.2d 729 (1968).

The right of defendant to a preliminary examination is not a constitutional right, Woon v. Oregon, 229 U.S. 586, 33 S.Ct. 783, 57 L.Ed. 1340 (1913), but it is one which the Michigan Supreme Court has called a 'fundamental right in most criminal cases', People v. Duncan, 388 Mich. 489, 502, 201 N.W.2d 629, 635 (1972), and the United States Supreme Court has found to be a 'critical stage' in criminal proceedings. Coleman v. Alabama, 399 U.S. 1, 9, 90 S.Ct. 1999, 2003, 26 L.Ed.2d 387, 397 (1970). 'The primary function of a preliminary examination is to determine if a crime has been committed and, if so, if there is probable cause to believe the defendant committed it.' People v. Duncan, Supra, 388 Mich. at 499, 201 N.W.2d at 633. The preliminary examination 'has grown in importance and significance both for the prosecution and a defendant...