People v. Stoll

R. B. Burns, J.

Pursuant to a plea bargain, defendant pled guilty to delivery of phencyclidine, MCL 335.341(l)(b); MSA 18.1070(41)(l)(b), assault with intent to commit murder, MCL 750.83; MSA 28.278, and possession of a firearm during commission of a felony, MCL 750.227b; MSA 28.424(2). The assault and firearm offenses allegedly arose out of the same transaction.

We find defendant’s arguments regarding the title-object clause, Const 1963, art 4, § 25, and double jeopardy, US Const, Am V, Const 1963, art 1, § 15, unpersuasive. See People v Gary Hughes, 85 Mich App 674; NW2d (1978), People v Walter Johnson, 85 Mich App 654; NW2d (1978).

We also find defendant’s argument regarding the trial court’s failure to explain the elements of the offense of assault with intent to commit murder to be without merit. See GCR 1963, 785.7(l)(a), Guilty Plea Cases, 395 Mich 96, 115-117; 235 NW2d 132, 139-140 (1975). Henderson v Morgan, 426 US 637; 96 S Ct 2253; 49 L Ed 2d 108 (1976), is distinguishable from this case on the facts.

Plaintiff concedes that an adequate factual basis was not elicited to establish assault with intent to *597commit murder. The firearm offense necessarily turns upon the establishment of the assault offense. As to these two counts, the case is remanded. On remand the prosecutor shall be given the opportunity to establish the missing elements. If he is able to do so and there is no contrary evidence, the judgment of conviction shall be affirmed. If contrary evidence is produced, the matter shall be treated as a motion to withdraw the guilty pleas and the court shall decide the matter in the exercise of its discretion. Guilty Plea Cases, supra at 129; 235 NW2d at 145.

Reversed in part, affirmed in part and remanded.