Summary
In People v Rowe, 85 Mich. App. 106; 270 N.W.2d 472 (1978), a plea of guilty of possession of a controlled substance was sustained even though as part of the plea agreement the prosecutor promised to dismiss a charge of bringing a controlled substance into a prison without a permit; the defendant, however, could not have been convicted of such charge.
Summary of this case from People v. JamesOpinion
Docket No. 77-268.
Decided May 25, 1978.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Edward J. Grant, Prosecuting Attorney, and John L. Wildeboer, Assistant Prosecuting Attorney, for the people.
Daniel J. Wright, Assistant State Appellate Defender, for defendant on appeal.
On November 3, 1976, defendant James Dale Rowe pled guilty in Jackson County Circuit Court to possession of a controlled substance, contrary to MCL 335.341(4); MSA 18.1070(41)(4). Defendant was originally charged both with possession of a controlled substance, Diazepam, and with bringing that substance into prison without a permit, contrary to MCL 800.281; MSA 28.1621. Pursuant to plea bargaining, the prosecution agreed to dismiss the count concerning MCL 800.281; MSA 28.1621, to abandon possible prosecution of defendant as an habitual criminal, MCL 769.10 et seq.; MSA 28.1082 et seq., and to refrain from any objection in sentencing defendant concurrently rather than consecutively on the charge admitted. The trial court accepted defendant's plea for the possession count on December 8, 1976, under these conditions and sentenced defendant to a prison term of one to two years to be served concurrently with a sentence from a prior conviction. Defendant appeals as of right under GCR 1963, 806.1.
Defendant contends (1) that he did not receive proper notice of the addition of Diazepam to Schedule 4 of the Controlled Substances Act because such notice was not published in the Supplement to the Michigan Administrative Code before defendant was charged, (2) that the form of notice under MCL 24.261; MSA 3.560(161), is not sufficient to apprise defendant of when penal sanctions begin to operate in regard to the added provision, and (3) that defendant's guilty plea was coerced when he was charged with an offense for which he could not have been convicted.
Upon review, we find the trial court did not commit error in this case. Defendant was not denied proper constitutional notice where the addition of Diazepam to Schedule 4 did not become effective until 15 days after the date of filing with the Secretary of State, as required by MCL 24.247; MSA 3.560(147). Defendant's attempted analogy to the Federal Administrative Procedures Act is not persuasive. See 5 U.S.C. § 551 et seq. The provisions of that act requiring Federal agencies to publish promulgated rules within 30 days in the Federal Register before they become operative does not establish a constitutionally required standard.
Because we find notice pursuant to MCL 24.247; MSA 3.560(147) sufficient to apprise defendant of the addition of Diazepam to Schedule IV, his second claim of error is without merit.
Finally, though defendant was originally charged and bound over on a count for which he could not have been convicted, that charge was later dismissed pursuant to the plea bargain reached. See People v Stanton, 400 Mich. 192, 196; 253 N.W.2d 650 (1977). Defendant was not convicted on the basis of this charge. We find no basis to reverse defendant's plea because the charge was brought or because defendant was bound over on that charge.
We sustain the guilty plea.
Affirmed.