
    PEOPLE v MILLER
    Docket No. 69044.
    Submitted August 4, 1983, at Grand Rapids.
    Decided October 25, 1983.
    Leave to appeal applied for.
    Gordon J. Miller was convicted, on his plea of guilty, of breaking and entering an occupied dwelling with intent to commit larceny and of resisting and obstructing a police officer, Calhoun Circuit Court, Paul Nicolich, J. Defendant appealed, alleging that the evidence presented at the preliminary examination was insufficient to support binding him over for trial. Held:
    
    Defendant failed to preserve this issue for appellate review. A motion at the trial court level to quash the information is necessary to preserve this issue for review without regard to whether the defendant pled guilty or was convicted at a trial. Furthermore, any deficiency in the evidence at the preliminary examination presents no manifest injustice, requiring appellate review even though not properly preserved, because an ample factual basis to support the plea to breaking and entering was elicited at the plea-taking proceeding.
    Affirmed.
    1. Criminal Law — Appeal — Sufficiency of Evidence — Preserving Question.
    A motion to quash the information must be made in the trial court in order for a defendant to preserve for appellate review the issue of whether sufficient evidence was presented at the preliminary examination to support binding him over for trial; this is true without regard to whether the defendant pled guilty or was convicted after a trial.
    2. Courts — Appeal — Preserving Question.
    Appellate courts have the power to prevent fundamental injustice by considering manifest and serious errors not properly preserved for appellate review.
    References for Points in Headnotes
    
       5 Am Jur 2d, Appeal and Error §§ 599, 607 et seq.
    
    
       5 Am Jur 2d, Appeal and Error §§ 558 et seq., 772 et seq.
    
    
      
      Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Conrad J. Sindt, Prosecuting Attorney, and Michael J. Berezowsky, Assistant Prosecuting Attorney, for the people.
    State Appellate Defender (by Sheila N. Robertson), for defendant on appeal.
    Before: V. J. Brennan, P.J., and Shepherd and E. A. Quinnell, JJ.
    
      
       Circuit judge, sitting on the Court of Appeals by assignment.
    
   Per Curiam.

Defendant pled guilty to breaking and entering an occupied dwelling with intent to commit larceny, MCL 750.110; MSA 28.305, and to resisting and obstructing a police officer, MCL 750.479; MSA 28.747. Defendant was sentenced to imprisonment for two concurrent terms of 5 to 15 years and 16 months to 2 years, and he appeals as of right.

Defendant argues that the evidence presented at his preliminary examination was insufficient to support binding him over for trial on the breaking and entering charge. Defendant points to certain dicta in People v Alvin Johnson, 396 Mich 424, 444; 240 NW2d 729 (1976), and argues that his plea did not waive his right to raise this issue. Several panels of this Court have declined to follow the dicta from Alvin Johnson at issue. See, for example, People v Hill, 86 Mich App 706, 709-712; 273 NW2d 532 (1978), People v Pittinger, 105 Mich App 736, 740; 307 NW2d 715 (1981), and People v Jones, 111 Mich App 465; 314 NW2d 654 (1981).

Here, however, we need not decide whether the defendant’s guilty plea waived any deficiency in the proofs at preliminary examination because defendant failed to preserve this issue for appellate review by a motion to quash the information. See People v McIntyre, 74 Mich App 661; 254 NW2d 603 (1977), and People v Hill, supra, pp 712-713. A motion to quash the information is necessary to preserve this issue for appellate review without regard to whether defendant pled guilty or was convicted after a trial. See People v Willis, 1 Mich App 428, 430-431; 136 NW2d 723 (1965), People v Sparks, 53 Mich App 452, 454; 220 NW2d 153 (1974), People v McKinney, 65 Mich App 131, 134; 237 NW2d 215 (1975), and People v Buschard, 109 Mich App 306, 319; 311 NW2d 759 (1981).

Appellate courts have the power to prevent fundamental injustice by considering manifest and serious errors not properly preserved for appellate review. People v Dorrikas, 354 Mich 303, 316; 92 NW2d 305 (1958). However, we have been unable to find a single decision in which that power was exercised to consider a claim that the evidence at the preliminary examination was insufficient. Because a factual basis ample to support the plea to breaking and entering was elicited from defendant at the plea-taking proceeding, any deficiency in the evidence presented at the preliminary examination presents no manifest injustice.

Affirmed.  