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04/06/76 PEOPLE v. DIXSON

April 6, 1976

PEOPLE
v.
DIXSON



Appeal from Monroe, William J. Weipert, Jr., J.

Bronson, P. J., and Bashara and M. F. Cavanagh, JJ.

SYLLABUS BY THE COURT

1. -- Plea of Guilty -- Plea Agreement -- Affirmatively Acknowledge -- Failure to Affirmatively Acknowledge -- Court Rules.

A plea agreement, to be binding, must be stated on the record and affirmatively acknowledged by the defendant, his lawyer and the prosecutor; therefore, there was no binding plea agreement where, at a plea-taking proceeding, a defendant's attorney stated that there was a plea agreement between the defendant and the prosecutor's office and recited the terms thereof, but the assistant prosecutor, who was at the proceeding, specifically stated that he did not know the details of the plea agreement, if any agreement had been actually reached (GCR 1963, 785.7[2]).

2. -- Plea of Guilty -- Plea Agreement.

A guilty plea, entered pursuant to a plea agreement, is valid even if there is an inaccurate or incomplete recitation of the agreement on the record, unless the true bargain cannot be fulfilled.

3. -- Plea of Guilty -- Plea Proceeding -- Supplemental Hearings -- Plea Agreement.

A hearing supplemental to an original plea proceeding should be held to determine the contents of a plea agreement which has not been affirmatively acknowledged on the record.

4. -- Plea of Guilty -- Plea Agreement -- Inaccurately Stated Agreement -- Failure to Affirmatively Acknowledge -- Withdrawal of Plea -- Abuse of Discretion.

A defendant will be allowed to stand upon his original plea of guilty where the defendant has expressed a clear desire to do so even though the plea agreement, pursuant to which the defendant entered the plea, was inaccurately stated on the record and was not binding because it was not "affirmatively acknowledged" by the prosecutor; however, where a defendant who has entered a guilty plea pursuant to a plea agreement which was inaccurately stated on the record wishes to withdraw that plea, it would be an abuse of a trial Judge's discretion to prevent the withdrawal of that plea.

5. -- Constitutional Law -- Double Jeopardy -- Plea of Guilty -- Waiver -- Multiple Charges -- Same Transaction.

A defendant waives the protection of the double jeopardy clause when he offers a plea to a charge with another charge, arising out of the same transaction, pending and has a full awareness that the prosecutor intends to proceed on that other charge.

The opinion of the court was delivered by: Per Curiam

Ausbert L. Dixson was charged with breaking and entering an unoccupied dwelling house with intent to commit larceny and with assault with intent to commit murder. Defendant pled guilty to the breaking and entering charge but his plea of guilty to that charge was vacated upon a motion by the prosecution. The defendant was convicted on both charges. Defendant appeals. Conviction for breaking and entering with intent to commit larceny vacated and the cause remanded for reinstatement of the defendant's plea of guilty and sentencing thereon.

Defendant was charged with breaking and entering an unoccupied dwelling house with intent to commit larceny therein, contrary to MCLA 750.110; MSA 28.305, and assault with intent to commit murder, contrary to MCLA 750.83; MSA 28.278. He pled guilty on June 28, 1974, to the breaking and entering charge, but that plea was vacated on July 15, 1974, upon motion of the prosecutor. A bench trial was held on December 16, 1974, and defendant was found guilty of both of the originally ...


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