(concurring and dissenting). I concur in the memorandum opinion except in the following particulars:
*142In Neal, this Court was provided with the transcripts of two pleas of guilty by the same defendant before the same judge on the same day. In the first plea, all of the factual elements were elicited from the defendant including the asportation of money. In the second plea, the transcript demonstrates:
"Defendant Neal: I walked into the Sax Discount Drug Store. I waited until everyone left the store. I told the lady behind the counter, don’t make no false moves, put all of the money in the paper bag. Then, I ran out of the store.
"The Court: This is the same kind of a situation as the other one but in a different store?
"Defendant Neal: Yes.”
In the brief of defendant-appellant, it is stated: "The plea in the instant matter immediately followed the entry of a plea in Wayne County Circuit Court No. 73-58366-FR * * * .” Defendant’s brief, in commenting upon the transposition from one record to another, recites:
"[W]hile one may attempt by common sense to assume the existence of that which is missing from the record, Rule 785.7(3), (5) prohibits such an assumption.”
With Shekoski gone, let it no longer be said that on the facts of this case 785.7 prohibits an assumption of common sense. In this case, neither the defendant, the court nor the prosecution were misled, deceived or prejudiced in any conceivable way. The factual basis was effectively determined. I would affirm.
Courtney is an attempt at sentence bargaining premised upon a plea to a nonexistent offense. Uttering and publishing of a forged instrument *143has been a completed crime upon proof of the attempt since the earliest days of Michigan case law. See People v Brigham, 2 Mich 550 (1853). To define a crime in terms of an attempt to attempt is contrary to reason and impossible in logic. The plea in Courtney should be vacated.
It is also necessary to dissent to the finding in Pleasants. We have maintained in the memorandum opinion that Shekoski no longer applies to Rule 785.7. Subsection 3 of that rule is entitled, "Determining Factual Basis for Plea.” In subsection (d) thereunder, reference to the plea of nolo contendere indicates that the judge must establish "substantial support for a finding that the defendant is in fact guilty of the charged offense”. Subsequently, it requires that the judge, shall state reasons for believing that the interests of the defendant and the proper administration of justice do not require interrogation of the defendant regarding his participation in the crime. The drafters of the rule placed emphasis on the determination of the factual basis. The record disclosed that defendant and his two attorneys (one on each of two separate charges) were present in the courtroom during the plea taking of a codefendant. We have seen few transcripts in which the plea taking was as painstaking and thorough as this. The plea of nolo contendere was made to a charge on which trial actually had been started and the prosecution’s case finished. The trial court recited its conclusion that sufficient interests of the defendant and the proper administration of justice existed to support the acceptance of the plea. The record as a whole must be considered. It furnishes a sufficient basis to constitute compliance with this requirement which does not, after all, go to a matter of constitutional rights.
*144Finally I concur with the Court’s treatment of McMiller regretting only, in my judgment, it does not go far enough. Rather than leave the remains of McMiller writhing in agony, I would prefer it be given a merciful coup de gráce.
In his opinion in McMiller, Justice Thomas G. Kavanagh said:
"The doctrine of implied acquittal by a jury’s verdict convicting the defendant of a lesser included offense, in our view, is not properly applicable to a guilty plea conviction.
* * *
"McMiller was never in peril of being convicted and punished for murder. He has not 'run the gantlet’ on that charge.
"Unlike a jury trial, a choice was not offered to the independent fact finder to find him guilty of murder, first or second, or manslaughter. It is this 'choice’ of the fact finder that provides the basis for the implication of acquittal. It is the exposure to it that puts one in 'jeopardy’.
"A trial is an adversary procedure. Taking a plea of guilty is not an adversary procedure.
"The result is the same — conviction, and so long as that conviction stands, the effect is identical. A conviction can be set aside only for an error in the procedure whereby it was effected. Logic would say that a defective procedure is a nullity, and hence would dictate that we start all over with a clean slate. But we do not do so in all cases.
"As we have seen, for policy reasons we forbid adversary procedure to expose a person to conviction for a higher offense when the independent fact finder has chosen to find him guilty of a lesser offense. We express this policy in terms of 'double jeopardy’ although strictly speaking this is an extension of the doctrine of autrefois acquit.”389 Mich 425, 430-431.
Proceeding to a balancing of antagonistic considerations, the Court held at 434:
*145"For these reasons we hold that upon the acceptance of a plea of guilty, as a matter of policy, the state may not thereafter charge a higher offense arising out of the same transaction.”
The holding in McMiller was designed to provide further incentives for trial courts and the prosecution to avoid error. What it has actually done is to provide further incentive for defendants to appeal convictions. When the plea bargain has resulted in a reduction from the charge originally made, every reversal results in a recommencement of the process with a lower potential punitive ceiling than before. With appellate counsel provided at public expense in the event of indigency, the defendant has absolutely nothing to lose.
The goals of this judicially-born policy have not been achieved. Quite the opposite. More importantly, this policy is for the Legislature, not the Court. I would overrule McMiller.