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Per Curiam. This is an appeal from an order of the trial court entered in response to an order of
*385 this Court to file a transcript or settle a record within 60 days of this Court’s order.The transcript was not filed nor was a record settled within the time specified. Thereupon, on November 14, 1973, the trial court entered an order vacating the plea-based conviction and granting a new trial. The plea had been entered some 12 years earlier. Understandably, the prosecuting attorney two days later on November 16, 1973, filed a motion to dismiss the charge.
On the same day the trial court granted the motion to dismiss.
On November 28, 1973, the prosecutor filed another motion to set aside the order granting a new trial and order of dismissal. This for the reason that the missing transcript had been found. Thereupon the trial judge, reciting that she [Hon. Geraldine Bledsoe Ford] had acted on an "erroneous assumption”, set aside her two former orders "nunc pro tunc”.
Giving her last order nunc pro tunc effect was incorrect. Nunc pro tunc has a special meaning in our law and has been defined by our Supreme Court.
" 'A nunc pro tunc entry, in practice, is an entry made now of something which was actually previously done, to have effect as of the former date. Its office is not to supply omitted action by the court, but to supply an omission in the record of action really had, but omitted through inadvertence or mistake.’ ” Mallory v Ward Baking Co, 270 Mich 91, 93; 258 NW 414 (1935).
Under our authority wisely granted by GCR 1963, 820.1(7) we vacate the order entered nunc pro tunc and reinstate the effect thereof on the ground that all the parties hereto were acting in good faith on a mistake of fact. The missing docu
*386 ment was a part of the court file. The trial judge was empowered to take judicial notice thereof. Courts are not simply mechanistic devices, powerless to correct human error made in good faith and without intent to deceive.Next we examine the plea-taking process which was in force at the time the plea was taken. It was Court Rule No 35A (1945). We examine it and its statutory counterpart.
Court Rule No 35A (1945) provided:
"In every prosecution wherein the accused is charged with a felony the trial court shall conform to the following practice:
"Sec. 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 shall not be accepted.
"This rule is mandatory but failure to comply therewith shall not be considered jurisdictional.”
MCLA 768.35; MSA 28.1058 provides:
"Whenever any person shall plead guilty to an information filed against him in any court, it shall be the duty of the judge of such court, before pronouncing judgment or sentence upon such plea, to become satisfied after such investigation as he may deem necessary for that purpose respecting the nature of the case, and the circumstances of such plea, that said plea was made
*387 freely, with full knowledge of the nature of the accusation, and without undue influence. And whenever said judge shall have reason to doubt the truth of such plea of guilty, it shall be his duty to vacate the same, direct a plea of not guilty to be entered and order a trial of the issue thus formed.”This was a negotiated, plea and this fact appears on the record. The only claim of error which need be considered is whether the trial judge in accepting the plea, substantially complied with the requirement that defendant be advised of his constitutional rights and a determination by this Court that the plea was freely, understandingly and voluntarily made.
The plea was taken before the ritualistic requirements of GCR 1963, 785 and Shekoski
1 were ' promulgated. Nothing in this record suggests that defendant, a fourth offender, did not know exactly what he was doing in copping a plea to attempt2 in lieu of the original charge of breaking and entering in the nighttime.3 There is no reversible error. The judgment of conviction entered on the plea is affirmed.
People v Shekoski, 393 Mich 134; 224 NW2d 656 (1974).
MCLA 750.92; MSA 28.287.
MCLA 750.110; MSA 28.305.
Document Info
Docket Number: Docket 17231
Citation Numbers: 233 N.W.2d 551, 62 Mich. App. 383
Judges: V.J. Brennan, P.J., and D.E. Holbrook, Jr. and O'Hara
Filed Date: 6/25/1975
Precedential Status: Precedential
Modified Date: 8/26/2023