
    PEOPLE v RIVERA
    Docket No. 94630.
    Submitted September 14, 1987, at Lansing.
    Decided December 7, 1987.
    Carlos Rivera, pursuant to a plea agreement, was convicted on his plea of nolo contendere to one count of manslaughter and one count of larceny in a building, Washtenaw Circuit Court, Ross W. Campbell, Jr., J. Defendant appealed the convictions separately. In his appeal of the manslaughter conviction, he raised a speedy trial issue. The Court of Appeals affirmed, holding that the speedy trial issue was a nonjurisdictional defect and that his plea waived all nonjurisdictional defects. People v Rivera, unpublished opinion per curiam of the Court of Appeals, decided July 18, 1987 (Docket No. 82113). The defendant raises the identical issue in this appeal of the larceny conviction.
    The Court of Appeals held:
    
    The Supreme Court in People v New, 427 Mich 482 (1986), did not resolve the conflict on the Court of Appeals with respect to whether a plea of guilty or nolo contendere waives the right to raise a speedy trial issue on appeal. The better reasoned authority holds that such pleas result in a waiver of the right to raise the speedy trial issue on appeal.
    Affirmed.
    Criminal Law — Speedy Trial — Nolo Contendere Pleas.
    The Supreme Court has not yet resolved the split of authority in the Court of Appeals with respect to whether a plea of guilty or nolo contendere waives the right to raise a speedy trial issue on appeal; the better reasoned authority holds that the right to raise a speedy trial issue is waived by the entry of a plea of guilty or nolo contendere.
    References
    Am Jur 2d, Criminal Law §§ 473, 498, 865, 866.
    Accused’s right to speedy trial under Federal Constitution — Supreme Court cases. 71 L Ed 2d 983.
    Waiver or loss of accused’s right to speedy trial. 57 ALR2d 302.
    
      Frank J. Kelley, Attorney General, Louis J. 
      
      Caruso, Solicitor General, William F. Delhey, Prosecuting Attorney, and David A. King, First Assistant Prosecuting Attorney, for the people.
    
      Hortin, Rogow & Moors (by Thomas O. Moors), for defendant on appeal.
    Before: M. J. Kelly, P.J., and Cynar and Doctoroff, JJ.
   M. J. Kelly, P.J.

On February 1, 1985, pursuant to a plea agreement, defendant pled nolo contendere to one count of manslaughter, MCL 750.321; MSA 28.553, and one count of larceny in a building, MCL 750.360; MSA 28.592. His appeal from the manslaughter conviction has already been affirmed by another panel of this Court. People v Rivera, unpublished opinion per curiam of the Court of Appeals, decided July 18, 1986 (Docket No. 82113). Now, defendant appeals his conviction on the larceny charge. We affirm.

In exchange for defendant’s plea, numerous charges including armed robbery, first-degree murder and a supplemental information were subsequently dismissed. Defendant’s sole argument here is that he was denied his constitutional right to a speedy trial. Defendant raised an identical issue in the previous appeal from his manslaughter conviction. In that instance this Court rejected defendant’s claim on the basis that defendant’s nolo contendere plea waived all nonjurisdictional defects. The Court concluded that the claimed denial of the right to a speedy trial was a nonjurisdictional defect and defendant’s argument was waived by his plea.

There has been a split on this Court over whether a right to raise on appeal a claim of a denial of the right to a speedy trial survives a guilty plea or a plea of nolo contendere. For authority for the proposition that a speedy trial claim is waived by a plea, see People v Parshay, 104 Mich App 411; 304 NW2d 593 (1981), lv den 411 Mich 1081 (1981), and People v Williams, 145 Mich App 614; 378 NW2d 769 (1985). For the contrary position, that a speedy trial claim survives a plea, see People v Davis, 123 Mich App 553; 332 NW2d 606 (1983), and People v Farmer, 127 Mich App 472; 339 NW2d 218 (1983).

The most recent case to decide this issue sided with those cases that have held that a speedy trial issue survives a guilty plea. See People v Sickles, 162 Mich App 344; 412 NW2d 734 (1987). However, Sickles based its conclusion not on the reasoning of the prior line of cases, but on the basis that People v New, 427 Mich 482; 398 NW2d 358 (1986), resolved the split.

The operant language taken from People v New is as follows:

Today, we hold that a defendant, after pleading guilty, may raise on appeal only those defenses and rights which would preclude the state from obtaining a valid conviction against the defendant. Such rights and defenses "reach beyond the factual determination of defendant’s guilt and implicate the very authority of the state to bring a defendant to trial . . . .” [People v White, 411 Mich 366, 398; 308 NW2d 128 (1981)] (Moody, J., concurring in part and dissenting in part.) In such cases, the state has no legitimate interest in securing a conviction. On the other hand, where the defense or right asserted by defendant relates solely to the capacity of the state to prove defendant’s factual guilt, it is subsumed by defendant’s guilty plea. [Id. at 491.]

From this language, Sickles concludes that, despite the fact that People v New did not involve a speedy trial defense, the rationale in People v New leads to the result that a plea of nolo contendere will not waive a speedy trial issue, because "[s]peedy trial issues do not relate to the state’s capacity to prove a defendant’s factual guilt but instead go more to the state’s right to ultimately bring a defendant to trial.” People v Sickles, supra at 351-351.

We are unable to agree that People v New has resolved this issue. The decision in People v New can only be characterized as more restrictive upon a defendant’s rights subsequent to the acceptance of a plea of guilty or nolo contendere. People v New expressly rejected the more expansive language of People v Alvin Johnson, 396 Mich 424; 240 NW2d 729 (1976), cert den 429 US 951; 97 S Ct 370; 50 L Ed 2d 319 (1976). The portion of Johnson rejected by New as a misreading of federal authority and as unnecessary dictum provided that a guilty plea did not waive those rights "relating to insufficient evidence to bind over at preliminary examination and failure to suppress illegally-obtained evidence without which the people could not proceed . . . .” Id. at 444.

If panels of this Court could conclude that a guilty plea or plea of nolo contendere operated as a waiver of a due process claim based on a denial of the right to a speedy trial despite the holding in People v Alvin Johnson, such reasoning must still survive the holding in People v New in light of its broader application of waiver in guilty plea cases.

Consequently, we conclude, consistent with People v Parshay, supra, People v Williams, supra, United States v Freed, 688 F2d 24 (CA 6, 1982), and United States v Lee, 500 F2d 586 (CA 8, 1974), cert den 419 US 1003; 95 S Ct 322; 42 L Ed 2d 279 (1974), that a speedy trial claim is nonjurisdictional and thus waived by a defendant’s plea of guilty or nolo contendere.

Affirmed.  