People v. Davidson

N. J. Kaufman, P.J.

(dissenting). I respectfully dissent. I would reverse defendant’s convictions because of the trial court’s failure to advise defendant that there was a mandatory minimum term of imprisonment for the offense of armed robbery. GCR 1963, 785.7(1)(d).

In People v Jones, 410 Mich 407; 301 NW2d 822 (1981), the Supreme Court in a per curiam opinion reiterated that "a failure to comply with Rule 785.7(1), subds (b) and (d) requires that the resulting plea-based conviction be set aside”. Id., 408. I realize that when the Jones opinion actually enunciated the errors of the trial courts it cited only the failure to warn that the maximum sentence for armed robbery is life imprisonment "or that possession of a firearm in the course of a felony carries a mandatory two-year term of imprisonment”. Id., 412. The Court made no mention of the failure to advise of the mandatory minimum for armed robbery.

However, I fail to see any valid difference between the error cited in Jones and the failure of the trial court in the case at bar to advise defendant of the mandatory minimum sentence for armed robbery. The only distinction is that the *40mandatory sentence for a felony-firearm conviction is clearly stated in the statute while that for armed robbery is not. See MCL 750.529; MSA. 28.797. Thus, the phrase "any term of years” has been subject to varying interpretations. See People v Earl Jones, 94 Mich App 232, 236-241; 288 NW2d 385 (1979) (Corkin, J., dissenting). However, I still believe that it sets a mandatory minimum sentence. A defendant convicted of armed robbery may not be placed on probation. See also MCL 771.1; MSA 28.1131. While a trial judge may not be able to state with confidence precisely what that mandatory minimum is, a defendant should at least be informed, in the words of the statute, that he will be required to serve a minimum prison sentence of "any term of years”.

I would reverse and remand for new trial.