People v. McFadden

J. T. Corden, J.

Defendant pled guilty to the charges of larceny in a building, MCL 750.360; MSA 28.592, and being a fourth-felony habitual offender, MCL 769.12; MSA 28.1084. Defendant was sentenced to two to fifteen years’ imprisonment on the habitual offender conviction. Defendant appeals as of right and we affirm.

Defendant’s sole issue regards his arrest without a warrant. Defendant contends that his arrest was not supported by probable cause; thus, the trial court erred in failing to suppress and exclude illegally seized evidence and in failing to quash the information based thereon.

We must first determine whether defendant has waived his right to appeal the issue asserted. It is clear that under People v New, 427 Mich 482, 491; 398 NW2d 358 (1986), the issue asserted by defendant is waived since it relates to the capacity of the state to prove defendant’s factual guilt.

Defendant contends that he has preserved the issue by the procedural device of a "conditional” plea of guilty. People v Reid, 420 Mich 326; 362 NW2d 655 (1984). A review of the record shows that defendant’s attorney requested the court to accept defendant’s plea while preserving the issue defendant raised in his motion to quash the information. The court stated that the motion was preserved. However, the prosecutor did not respond to defendant’s request nor did the court inquire about the prosecutor’s position. Under Reid, supra at 329, defendant, the prosecutor, and the judge must agree to the conditional plea. Since the prosecutor did not, defendant has unconditionally pled guilty and has waived the issue he now seeks to assert on appeal. People v Kim Williams, 160 Mich App 738, 740; 408 NW2d 540 (1987).

Affirmed.

Doctoroff, J., concurred.