People v. Pogue , 54 Mich. App. 74 ( 1974 )

54 Mich. App. 74 (1974) 220 N.W.2d 317

PEOPLE
v.
POGUE

Docket No. 16697.

Michigan Court of Appeals.

Decided June 25, 1974.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Robert F. Leonard, Prosecuting Attorney, Donald A. Kuebler, Chief, Appellate Division, and F. Jack Belzer, Assistant Prosecuting Attorney, for the people.

James W. Lang, for defendant on appeal.

Before: BRONSON, P.J., and HOLBROOK and O'HARA,^[*] JJ.

BRONSON, P.J.

Defendant's first conviction in this case resulted from a plea of guilty later set aside for failure to comply with People v Jaworski, 387 Mich 21; 194 NW2d 868 (1972). Her second plea, on November 8, 1972, resulted in her conviction for manslaughter, MCLA 750.321; MSA 28.553, and a sentence of 8 to 15 years passed December 14, 1972.

Defendant claims error on the basis of People v Duncan, 388 Mich 489; 201 NW2d 629 (1972). Duncan, supra, extended the right to a preliminary examination to felony defendants accused by grand jury indictments. See: People v Barbara, 390 Mich 377; 214 NW2d 833 (1973). In this case the defendant was indicted on an open charge of murder on December 16, 1970, approximately two years prior to Duncan. Counsel for defendant moved for a preliminary examination and the motion was denied. On May 18, 1971, defendant entered her first guilty plea. Her new trial to correct the first improper plea was set for September 20, 1972, but it was adjourned to November 8, 1972 (eight days after Duncan, supra, was decided on October 31, 1972), at which time the defendant entered her second plea. No further request was made for a preliminary examination after the request prior to the first plea.

We need not decide whether defendant's case comes within the literal language of Duncan. It is clear that defendant has waived any right to preliminary examination. It is well established that a defendant who enters a voluntary plea of guilty while represented by counsel waives all nonjurisdictional defects in prior stages of the proceedings. People v Collins, 380 Mich 131; 156 NW2d 566 (1968). Additionally, any defect in a defendant's preliminary examination, including improper waiver thereof, is waived by a properly accepted plea of guilty. People v Wilkins, 25 Mich App 235; 181 NW2d 281 (1970), reversed on other grounds, 384 Mich 773 (1970).

The effect of the Duncan decision was to give future defendants charged by grand jury indictment the same rights as defendants charged by information, specifically a preliminary examination. However, as we observed above, the right to a preliminary examination can be waived. The defendant has waived any right she might have had if Duncan applied by entering her voluntary guilty plea.

Affirmed.

All concurred.

NOTES

[*] Former Supreme Court Justice, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.