PEOPLE v. UPSHAW, 91 Mich. App. 492 (1979)

283 N.W.2d 778

Docket No. 78-2900.Michigan Court of Appeals.
Decided July 26, 1979.

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Frank J. Kelley, Attorney General, Robert A. Derengoski,
Solicitor General, William L. Cahalan, Prosecuting Attorney Edward Reilly Wilson, Principal Attorney, Appeals, and Maura D. Corrigan, Assistant Prosecuting Attorney, for the people.

Before: J.H. GILLIS, P.J., and BEASLEY and R.B. WEBSTER,[*]
JJ.

PER CURIAM.

This is an appeal by the plaintiff from a visiting Detroit Recorder’s Court Judge’s order granting defendant’s motion to dismiss his case and expunge his record.

The defendant was charged with two counts of armed robbery, MCL 750.529; MSA 28.797, on October 9, 1976. He pled guilty to unarmed robbery, MCL 750.530; MSA 28.798, on March 3, 1977, and was sentenced to one year’s probation and assessed $100 restitution. In May, 1978, defendant brought a motion to dismiss the case and expunge his record.

There are two procedures by which a criminal record may be expunged. Under the youthful offender act, a trial court may set aside a conviction of a person who has pled guilty to a single offense which occurred before his 21st birthday. MCL 780.621; MSA 28.1274(101). The defendant was 17 at the time of the offense. However, the statute requires that a motion to set aside a conviction “shall not be made until the expiration of 5 years from the time of the entry of the guilty plea * * *.” The defendant was convicted on March 3, 1977. The motion was filed in May, 1978. Since five years had not elapsed since the time of the offense, the statute cannot be employed here.

The second procedure involves the granting of a

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new trial followed by a dismissal of the case. Under MCL 770.1; MSA 28.1098, a trial court can grant a new trial “for any cause for which by law a new trial may be granted, or when it shall appear to the court that justice has not been done * * *.” I People v McQuillan, 392 Mich. 511; 221 N.W.2d 569 (1974), the Court noted that the underlying policy behind the trial court’s power to consider motions for new trial was the desire “to reform erroneous judgments and/or orders”. Id., 522. There is no allegation in the record or in the defendant’s motion that the trial court erred in the original proceedings.

A trial court cannot accomplish indirectly what it cannot do directly. People v John Williams, 65 Mich. App. 531, 534; 237 N.W.2d 545 (1975). There is no statutory authority for expunging the defendant’s record. There is no allegation of any error requiring a new trial. The fact that the defendant may be handicapped by his record is unfortunate, but does not present sufficient reason for this Court to create a method for expunging his record.

This case is remanded to the trial court so that it may vacate its order, reinstate the defendant’s conviction and order defendant’s fingerprints, arrest card and description in the subject causes to be refiled.

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