The opinion
M. F. Cavanagh, J.
(dissenting). I dissent from my brother Danhof’s opinion for the reason that I believe that the qualified guilty plea is a valid and enforceable plea. See my concurrence in People v Ricky Smith, 85 Mich App 32, 48 ; 270 NW2d 697 (1978).
It is true that a guilty plea waives all nonjurisdictional defects in proceedings. People v Alvin Johnson, 396 Mich 424, 438-444 ; 240 NW2d 729 (1976). However, this fact is inapposite to situations wherein a particular defect is specifically preserved for review. The majority’s analysis does not withstand scrutiny and I will address the points raised therein seriatim.
A qualified plea does not cause the courts to consider claims to which a defendant "was not entitled”. It merely allows a defendant to say, "Yes, I did the act, but I contest the state’s ability to present its case against me”. There may be a number of reasons why a defendant would feel he had a legitimate legal defense to the state’s prosecution but that it would be futile or impossible for the defendant to say that he did not do the act with which he was charged.
GCR 1963, 785 does indeed provide for three alternative pleas — guilty, not guilty, and nolo contendere. A qualified guilty plea is a guilty plea but it is one which has been entered pursuant to agreement of the parties that certain basic ques *270 tions which may be dispositive of the case are not waived by the plea. The plea aids the trial court in expedition of the matter through the judicial process to the appellate level without requiring a long and potentially meaningless trial and aids the appellate court by narrowing the issues which are put before it to those which are dispositive of the case.
Qualified guilty pleas are not so contingent in nature as their opponents would have us believe. Qualified pleas may lead to a procedure entailing plea, appeal, trial and reappeal but this sequence stands in opposition to and is certainly less burdensome than that which is required when a defendant with a meritorious defense to his charge is forced to proceed through trial even though he is willing to plead guilty, namely, trial, appeal, retrial and reappeal.
As to the fourth point raised in the majority’s opinion, the preservation of the state’s case against a defendant should not be a point of paramount importance to this Court. The same possibility of loss of the ability to present its case (witnesses, evidence, etc.) holds true for the defendant as well as the state and so the possible adverse effect of the passage of time weighs against each side as heavily as the other.
Finally, I would answer the majority’s concern that qualified pleas prevent this Court from finding a particular error harmless by reiterating my view as expressed in People v Ricky Smith, supra, 49:
"When this Court makes a finding of harmless error in the admission of evidence at trial it second-guesses the trier of fact to determine how the trier would have decided the case without the admission of the challenged evidence. In a qualified plea situation, if the *271 lower court’s ruling on the suppression motion is found to be error and the case remanded for further proceedings, it will ultimately be the trier of fact itself who determines whether the prosecution’s case, without the suppressed evidence, proves defendant’s guilt beyond a reasonable doubt. I find it preferable that this decision be made by the trier of fact, who sees the witnesses first-hand, rather than by an appellate court, which sees only the record and exhibits. I also think it more consistent with the right to trial by jury that the factfinder make the ultimate finding on the weight of the properly admitted evidence. I therefore see no disadvantage in eliminating the appellate court’s power to find harmless error here.”
For these reasons, I would hold that the plea tendered herein was valid and enforceable. As my review of the record and briefs discloses no reversible error, I would affirm the convictions.