(concurring). I concur in setting aside the guilty plea and remanding the case to the trial court.
I have reviewed the report dated August 28, 1980, by the certified forensic examiner, Dixie Moore, Ph. D., directed to the prosecutor and defense counsel. Perhaps the intention of the examiner was to indicate that defendant was legally insane at the time of the offense, but it is unfortunate that she never said so in so many words.
In this case, it would seem to have been better to call the examiner as a witness than to base conclusions on her report. Particularly, this is true in light of the ephemeral differences between mental illness and legal insanity, as defined in the statute.1
However, the statute2 spells out with certainty what the trial judge must find if he is to accept a plea of guilty but mentally ill, and that is the problem with this plea. In an effort to comply with the statute, the trial judge stated:_
*593"Yes, the court has reviewed the report by Dixie Moore, the examining psychiatrist in which she does indicate that the defendant at the time had a mental illness and the court so finds that based on that report.”
This was within the context of both defense counsel and the assistant prosecutor representing to the court that there was compliance with GCR 1963, 785.7.
Thus, the narrow question is did the trial judge, and could the trial judge, in view of the examiner’s report, find on this record that defendant was not legally insane at the time of the offense. I think not and, for that reason, believe the guilty plea must be set aside.
On appeal, a claim is also made that defendant did not receive effective assistance of counsel, apparently on the theory that defendant should have gone to trial on the defense of not guilty by reason of insanity based on the examiner’s opinion. If defendant had been found not guilty by reason of insanity, then defendant would have been committed to the Center for Forensic Psychiatry in compliance with the statute,3 which commitment may not extend longer than five years.
On the other hand, defendant might have been found guilty as charged and sentenced to prison. A finding of not guilty by reason of insanity is not automatic merely because a "certified forensic examiner” says defendant is legally insane at the time of the offense. On trial, that becomes a fact issue for the trier of fact who is not bound by the opinion of the expert.4
In this case, at trial the prosecutor would have had the option whether to call a psychiatrist to *594rebut the examiner; at least the examiner would have been available for cross-examination. In addition, as previously indicated, I do not find the examiner’s report clear and unequivocal. Also, the examiner’s report reveals that defendant has a drug history.
In the light of these facts and circumstances, I find nothing in this record to suggest that trial counsel did not properly advise, represent and give effect to defendant’s best interest. I would reject the claim of ineffective assistance of counsel as frivolous.
MCL 768.21a; MSA 28.1044(1) and MCL 330.1400a; MSA 14.800(400a).
MCL 768.36; MSA 28.1059.
MCL 330.2050; MSA 14.800(1050).
Vial v Vial, 369 Mich 534; 120 NW2d 249 (1963).