People v. Ditto

110 Mich. App. 654 (1981) 313 N.W.2d 177 PEOPLE v. DITTO. Docket No. 52680. Michigan Court of Appeals. Decided October 21, 1981. Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, and Janice M. Joyce, Assistant Prosecuting Attorney, for the people. Chari Grove, Assistant State Appellate Defender, for defendant on appeal. Before: BASHARA, P.J., and J.H. GILLIS and V.J. BRENNAN, JJ. BASHARA, P.J. Defendant appeals his plea-based conviction of larceny in a building, MCL 750.360; MSA 28.592. Initially, defendant contends that the prosecutor abused his discretion by charging him under the statute prohibiting larceny in a building, a felony, rather than for simple larceny, MCL 750.356; MSA 28.588, which is a misdemeanor. The argument lacks merit. Michigan's appellate courts have regularly held that where an alleged defendant could have been charged under two different statutes for the same offense, it is not an abuse of discretion to charge the violation under the more harsh of the two statutes. Genesee Prosecutor v Genesee Circuit Judge, 391 Mich 115; 215 NW2d 145 (1974), Genesee Prosecutor v Genesee Circuit Judge, 386 Mich 672; 194 NW2d 693 (1972), People v Swearington, 84 Mich App 372; 269 NW2d 467 (1978). Defendant's argument is more properly one for *657 consideration by the Legislature and not this Court. Defendant also alleges that the trial court did not comply with GCR 1963, 785.7(1)(g)(iii), which requires that the trial court advise a defendant at the plea proceeding that by pleading guilty he waives the right to be presumed innocent until proven guilty. In Guilty Plea Cases, 395 Mich 96, 122; 235 NW2d 132 (1975), the Court held that the court rule has been satisfied where the record reveals that the defendant knew what a trial is and that by pleading guilty he was knowingly and voluntarily giving up the rights incident to trial. Specific wording is not required. Id., 122-124. Review of this record reveals that subrule 7(1)(g)(iii) was satisfied where the court informed the defendant that "the people would have to establish your guilt beyond a reasonable doubt, and if they failed to do that, you would be entitled to acquittal or being found not guilty". Defendant's remaining allegation of error is also without merit. Since defendant has not alleged that he was subjected to confinement for violation of probation or parole because of his guilty plea, no error requiring reversal occurred due to the trial court's failure to advise the defendant of that eventuality under GCR 1963, 785.7(1)(e). People v Hunt, 72 Mich App 168; 249 NW2d 341 (1977). Affirmed. J.H. GILLIS, J., concurred. V.J. BRENNAN, J. (dissenting). I respectfully dissent. The facts of this case are that defendant stole four socket sets worth approximately $12.95 from a drug store. In short, defendant was guilty of shoplifting. I have consistently adhered to the position that, under such undisputed facts, the *658 prosecutor abuses his discretion when he overcharges a shoplifter with larceny in a building, a potential four-year felony conviction, rather than with larceny under $100, a 90-day misdemeanor. People v CarMichael, 86 Mich App 418; 272 NW2d 667 (1978), lv den 406 Mich 949 (1979), People v Evans (V.J. BRENNAN, J., dissenting), 94 Mich App 4, 11; 287 NW2d 608 (1979), People v Hart (V.J. BRENNAN, J., dissenting), 98 Mich App 273, 276; 296 NW2d 235 (1980). It was not the intent of the Legislature to have the statute prohibiting larceny in a building applied in a shoplifting case. Petty shoplifting, no matter how frequently performed, does not amount to a felony. The penalties for shoplifting, as prescribed by the Legislature, are deemed to be sufficient deterrence and punishment. It is an abuse of prosecutorial discretion to elevate a 90-day misdemeanor into a four-year felony. Hopefully the Supreme Court will soon speak to this issue. Until then, I would reverse and remand for a reduction of the charge.