(dissenting). Robert Wolff was arrested on November 16, 1968, on the charge of aiding and abetting an armed robbery. On April 7, 1969, the prosecutor moved to amend the information by including a count of robbery unarmed. Defendant appeared on that day before Judge Robert E. DeMascio of the Recorder’s Court of Detroit to plead guilty to the lesser offense of robbery unarmed. Defendant was questioned by the court regarding his participating in the offense and the voluntariness of his plea, and the judge then said, "I will accept the plea.” The date for sentencing was set for May 8, 1969, and the defendant was referred to the probation officer for interviewing.
During the probation interview, the defendant "minimized” his guilt and at the time set for sentencing, the following colloquy took place:
"The Court: You indicate, from what you tell the probation officer, taken in connection with what you said there at the time of the plea, that you don’t have any guilt in this matter at all.
"The Defendant: Not really.
"The Court: 1 don’t know why you wasted the court’s time and pled guilty. .
"The Defendant: I was not trying to waste the court’s time.
"The Court: What were you doing?
*417"The Defendant: In a way I felt I had some guilt because I knew they were going to pull off a crime. But as far as out and out extent of armed robbery, no.”
After this exchange, the judge said:
"The Court: I cannot accept his plea. I shall set his plea aside and put the matter down for trial on- the charge of robbery armed for aiding and abetting * * * . And you indicate in your statement to the court that you were present but you did not receive any of the money?
"The Defendant: Yes, sir.
"The Court: Well, presence is not enough unless the jury finds there was something else that you did. Maybe driving the car was enough, but that is a fact for either a judge without a jury or a jury, but 1 am not going to accept his plea.”
Neither defendant nor his attorney consented or objected to this action.
On August 19, 1969, defendant was convicted in a non-jury trial of armed robbery and was subsequently sentenced to a term of 10 to 20 years. His motion for a new trial was denied and judgment was affirmed. On December 31, 1971, the Court of Appeals denied for lack of merit defendant’s application for delayed appeal.
This Court granted leave to appeal on April 11, 1972. The relief sought is reinstatement of the plea to unarmed robbery or remand for resentencing for no more than the maximum for unarmed robbery or grant of a new trial.
As the defendant notes, the present issue is one of first instance.1 In such cases, there is an ever-*418present temptation to generalize from the exception — an error by definition.
In essence, this case presents two principal questions: 1. Has the court denied defendant’s right to due process of law by vacating his plea without his consent before sentence and after additional testimony cast doubt on defendant’s guilt? 2. Does the double jeopardy clause2 preclude prosecution for the greater offense when the trial court has entertained a plea of guilty in a separate count and has, before sentencing, vacated that plea for cause hut without the consent of the accused?
Inherent in the first question stated above is another. Is our statute MCLA 768.35; MSA 28.1058, which requires the court to vacate the plea under these circumstances, unconstitutional? Although the judge may find facts after the initial recording of the guilty plea which lead him to the conclusion that the defendant may not be guilty, is he foreclosed from vacating the plea? Must he proceed to sentence the defendant regardless of the new facts? This Court holds "No”.
The defendant argues the relevancy of North Carolina v Alford, 400 US 25; 91 S Ct 160; 27 L Ed 2d 162 (1970). This allegedly affords Mr. Wolff the right to be, sentenced on his plea even though he *419was believed by the judge to be innocent. If he had that right under the given circumstances, obviously there would be no need to go further.
Mr. Alford was indicted for first-degree murder and pled guilty to second-degree although he denied any guilt. A 6-3 majority held:
"[W]hile most pleas of guilty consist of both a waiver of trial and an express admission of guilt, the latter element is not a constitutional requisite to the imposition of criminal penalty. An individual * * * may voluntarily, knowingly, and understandingly consent to the imposition of a prison sentence even if he is unwilling or unable to admit his participation in the acts constituting the crime.” (p 37.)
It should be added, however, that before accepting the guilty plea to second-degree murder, the Alford judge heard other witnesses who testified that, shortly before the killing, Alford took his gun from his house and stated that he was going to kill the victim. Later, he returned to the house and stated that he had carried out the killing. Alford testified that he was innocent but desired to plead guilty to second-degree murder to escape the possibility of a death sentence. He had a long prior record and was sentenced to 30 years imprisonment. The defendant appealed. The United States Supreme Court said:
"Although denying the charge against him, he nevertheless preferred the dispute between him and the State to be settled by the judge in the context of a guilty plea proceeding rather than by a formal trial. Thereupon, with the State’s telling evidence and Alford’s denial before it, the trial court proceeded to convict and sentence Alford for second-degree murder.” (p 32.)
A sentence appears at p 37 of Alford which should *420be noted with care: "[T]he Constitution is concerned with practical consequences * * *
In the present case the trial judge had before him the statutes, rules and case law of Michigan to the moment and the record indicates that he performed his duty accordingly. Alford had not yet been decided, nor would it have made any difference in this decision. The practice in Michigan was not affected by the ruling in Alford. In fact, that Court cited Lynch v Overholser, 369 US 705; 82 S Ct 1063; 8 L Ed 2d 211 (1962) in which it expressly refused to rule that the defendant had an absolute right to have his guilty plea accepted, but said there would have been no constitutional error had it been accepted.
Indeed, the Supreme Court in the Alford case holds that the states have an option in this matter:
"Our holding does not mean that the trial judge must accept every constitutionally valid guilty plea merely because a defendant wishes to so plead. A criminal defendant does not have an absolute right under the Constitution to have his guilty plea accepted by the court * * * although the States may by statute or otherwise confer such a right. Likewise, the States may bar their courts from accepting guilty pleas from any defendants who assert their innocence * * * ."(Emphasis added.) North Carolina v Alford, supra, p 38.
Both by statute and rule, Michigan has enunciated the latter policy. GCR 1963, 785.3, asserts the practice in Michigan which was in effect at the time of the plea. This Court recently said in People v Taylor, 387 Mich 209, 224 (1972):
"The provision [in GCR 1963, 785.3] that 'the court shall examine the accused * * * and * * * shall ascertain that the plea was * * * understandingly * * * made’ requires the judge to conduct such an examina*421tion as to show that what the defendant actually did was indeed a crime or otherwise he could not understandingly plead guilty. If what he did was actually not a crime, then if he pled guilty to it, it would not be an understanding plea.”
Also, our Court has said:
"If the judge has reason to doubt the truth of such plea of guilty, it becomes his duty sua sponte to vacate it and direct a plea of not guilty to be entered and order a trial of the issue thus formed.”3
By statute, Michigan also clarifies the difference between conviction after trial and conviction after a plea of guilty. It is not accidental that the subjects are approached in separate sections in close sequence. MCLA 768.33; MSA 28.1056 provides:
"When a defendant shall be acquitted or convicted upon any indictment for an offense, consisting of different degrees, he shall not thereafter be tried or convicted for a different degree of the same offense; nor shall he be tried or convicted for any attempt to commit the offense charged in the indictment or to commit any degree of such offense.”
Then comes MCLA 768.35; MSA 28.1058 to provide for a guilty plea:
"Whenever any person shall plead guilty * * * it shall be the duty of the judge * * * before pronouncing judgment or sentence upon such plea, to become satisfied after such investigation as he may deem necessary for that purpose * * * that said plea was made freely, *422with full knowledge of the nature of the accusation, and without undue influence. And whenever said judge shall have reason to doubt the truth of such plea of guilty, it shall be his duty to vacate the same, direct a plea of not guilty to be entered and order a trial of the issue thus formed.” (Emphasis added.)
The stated practice in Michigan was clear.
Defendant suggests, however, that this pre-Boykin case must be tested against the dicta stated in Boykin v Alabama, 395 US 238; 89 S Ct 1709; 23 L Ed 2d 274 (1969):4
"A plea of guilty is more than a confession which admits that the accused did various acts; it is itself a conviction; nothing remains but to give judgment and determine punishment.”
Although this case preceded Boykin, supra, and it is unreasonable to apply retroactively the dicta above, nonetheless, let us examine the words and probe the meaning, for they are important to both questions before the Court. First, the word "accept” does not appear at all, although arguments seem to marry the word "accept” to the words "guilty pleas”. When, then, does a plea of guilty result in a "conviction”? According to the dicta, the conviction lies when "nothing remains but to give judgment and determine punishment.”
The real villain in this case may be semantics. Too often the courts become involved in debate concentrating on manipulation of words and phrases, without concern for practical impact on *423trial courts and practitioners. It seems prudent to keep in mind the realities of the usual plea-taking process before a conscientious judge. The defendant, his attorney (if any) and a prosecutor appear before the judge. The defendant pleads guilty and the judge inquires. In most cases, one can expect the defendant’s story of his involvement in the alleged crime to coincide with the prosecutor’s conclusion after investigation. If so, the judge might logically "enter,” "record” or "accept” the plea on the testimony solely of the defendant. No one would have reason to doubt his veracity at that point. However, if before sentencing, the defendant changes his story, or other evidence is available to indicate that (1) one element of the crime might be found missing at a full trial of fact, as in this case, or (2) the defendant is taking the blame for someone else, or (3) his mental state becomes suspect, or if for any other of many possible newly discovered reasons the judge might feel the defendant possibly not guilty, it would be impractical precedent and repugnant to the cause of justice to hold that the judge must still pronounce sentence — innocent or not. To the contrary, Michigan court rules and statutes mandated as of the date of the taking of this plea that the judge vacate the plea before sentencing if he had doubt as to the defendant’s guilt. His duty was clear.
This appears to be a humane conclusion. It also appears to be consistent with the philosophy and policy set forth in other decisions. In this case, Wolff and his attorney came before Judge De-Mascio on May 8, 1969, at which time the judge refused to sentence and instead vacated the plea. There was no objection from defendant or his attorney. There was no objection when he went to *424trial. The act of "vacating” rendered void the entire transaction.
This Court finds no violation of due process in this case. The Court finds MCLA 768.35 to be constitutional.. The judge, having good cause to doubt the guilt of the defendant had the duty to vacate the plea before sentence according to Michigan practice then provided.
The plea having been vacated, the parties return to their original posture, and the defendant is properly charged on the original offense.5
Emphasis is given to the fact that the effect of this decision is limited to time prior to the effective date of the amended GCR 1963, 785.
The decision of the Court of Appeals is affirmed.
T. E. Brennan, J., concurred with M. S. Coleman, J. Levin, J., did not sit in this case.Michigan’s new court rule as to guilty pleas (GCR 1963, 785.7) has been adopted since the initial writing of this opinion, and is prospective in application. The fact remains that 52% of all appeals from criminal cases to the Court of Appeals in 1972 resulted from pleas of guilty.
US Const, Am V.
Const 1963, art 1, § 15;
This is applicable to the states through the Fourteenth Amendment. See, Benton v Maryland, 395 US 784; 89 S Ct 2056; 23 L Ed 2d 707 (1969). The provision
" * * * was designed to protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense * * * . The underlying idea * * * is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to. embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.” Green v United States, 355 US 184, 187; 78 S Ct 221; 2 L Ed 2d 199 (1957).
People v Street, 288 Mich 406, 408 (1939); People v Banning, 329 Mich 1, 6 (1950); People v Morrison, 348 Mich 88, 90 (1957); People v Taylor, 383 Mich 338, 360 (1970); Our cases indicate the judge would have been in error to accept defendant’s plea under the circumstances of this case. See, e.g. People v Barrows, 358 Mich 267 (1959); People v Williams, 386 Mich 277 (1971).
Also, Kercheval v United States, 274 US 220, 223; 47 S Ct 582; 71 L Ed 1009 (1927), the Court said:
"A plea of guilty differs in purpose and effect from a mere admission or an extra-judicial confession; it is itself a conviction. Like a verdict of a jury, it is conclusive. More is not required; the court has nothing to do but give judgment and sentence.”
This Court agrees with the findings that a jury acquittal or verdict for a lesser offense is regarded as an implicit acquittal of the greater offense. This is not such a case.