
    PEOPLE v MICHAEL JONES
    1. Criminal Law — Plea op Guilty — Informing Defendant — Prior Felony Convictions — Habitual Offenders — Increased Sentence — Appeal and Error — Court Rules.
    A trial judge in a criminal case, prior to accepting a defendant’s guilty plea, shall state directly to the defendant that if the defendant has been previously convicted of a felony he may be charged as an habitual offender and the maximum possible sentence may be increased; however, absent a showing of actual prejudice to the defendant, the error of the trial court in failing to comply with this portion of the rule does not mandate automatic reversal of the defendant’s conviction (GCR 1963, 785.7[1] [c]).
    2. Criminal Law — Motions—Plea of Guilty — Prior Felony Convictions — Habitual Offenders — Increased Sentence — Court Rules.
    The Court of Appeals will consider the issue where a defendant claims that the trial court failed to inform the defendant that the consequences of his guilty plea include an additional sentence because the defendant could be charged as an habitual offender where the defendant has a prior felony conviction and where he can produce evidence showing (1) that he is an habitual offender and (2) that he has been subjected to an additional prosecution or an increased sentence because of that status (GCR 1963, 785.7[1] [c]).
    Reference for Points in Headnotes
    
       21 Am Jur 2d, Criminal Law §§ 490, 491.
    Appeal from Recorder’s Court of Detroit, James A. Hathaway, J.
    Submitted November 10, 1976, at Detroit.
    (Docket No. 28503.)
    Decided December 10, 1976.
    Michael J. Jones was convicted, on his plea of guilty, of breaking and entering. Defendant appeals.
    Affirmed.
    
      
      Serman & Leh, for defendant.
    Before: Allen, P. J., and T. M. Burns and Beasley, JJ.
   T. M. Burns, J.

On December 18, 1975, defendant pled guilty to breaking and entering, MCLA 750.110; MSA 28.305. He was sentenced to 5 to 10 years in prison and appeals as of right.

Defendant argues on appeal that the trial court erred in failing to inform him that if he was previously convicted of a felony, his plea of guilty could subject him to prosecution as a habitual criminal. The transcript of the plea hearing reveals that the advice was not given.

GCR 1963, 785.7 provides in relevant part:

"Prior to accepting the plea, the court shall personally carry out subrules 785.7(1M4).
"(1) An Understanding Plea. Speaking directly to the defendant, the court shall tell him:
* # *
"(c) If he has been previously convicted of a felony, he may be charged as a habitual offender and the maximum possible sentence may be increased.”

This amended court rule became effective December 7, 1975, prior to the entry of the plea in the instant case. The trial court clearly failed to comply with the court rule. We are not persuaded, however, that this error mandates automatic reversal of defendant’s conviction.

The error in this case is closely analogous to the failure to advise a guilty-pleading defendant of possible sentencing consequences of his being on probation or parole at the time of his plea. Where it is asserted on appeal that the trial court failed to advise a guilty-pleading defendant in that regard, the proper procedure is to remand the case to the trial court and order the judgment of conviction set aside if it appears that the defendant was in fact on probation or parole at the time his plea was entered and that he was subjected to confinement for violating parole or probation because of his guilty plea conviction. If the defendant was not so prejudiced, the judgment of conviction is deemed affirmed. Guilty Plea Cases, 395 Mich 96, 127-128; 235 NW2d 132 (1975). While we believe that a similar rule is appropriate here, remand of this cause is not justified on the present record. The defendant has not alleged or offered any evidence to show that he has in fact been subjected to prosecution or an increased sentence based on the habitual offender statutes. Absent a showing of actual prejudice, we affirm the defendant’s conviction and sentence. However, if the defendant can produce evidence showing (1) that he is an habitual offender and (2) that he has been subjected to an additional prosecution or an increased sentence because of that status, we would then consider a motion for rehearing filed in this Court.

Defendant’s remaining argument does not merit restatement.

Affirmed.  