PEOPLE OF MI V ROBERT WILLIAM PALLITTO
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
March 4, 1997
Plaintiff-Appellee,
v
No. 176576
Macomb Circuit
LC No. 92-002034-FH
ROBERT WILLIAM PALLITTO,
Defendant-Appellant.
Before: D.F. Walsh,* P.J., and R.P. Griffin** and W.P. Cynar,* JJ.
MEMORANDUM.
Defendant pleaded guilty to possession with intent to deliver fifty grams or more but less than
225 grams of cocaine, second offense, MCL 333.7401(2)(a)(iii); MSA 14.15(7401)(2)(a)(iii) and
MCL 333.7413(2); MSA 14.15(7413)(2). On May 9, 1994, defendant was permitted to withdraw
the plea. On May 20, 1994, defendant requested a reinstatement of the plea and was sentenced to
twelve to forty years’ imprisonment. Defendant appeals as of right. We affirm. This case has been
decided without oral argument pursuant to MCR 7.214(A).
An entrapment defense is waived if it is not raised before sentencing. People v Crall, 444 Mich
463; 510 NW2d 182 (1993). Although defendant raised the issue of entrapment before his plea and
sentence, the trial court issued an order following a hearing on October 12, 1993, directing defendant to
file a brief by October 25, 1993. Contrary to defendant’s argument on appeal, there is no record
evidence that a brief was filed. Further, the trial court’s February 1, 1994 order to schedule a trial date
for defendant’s four pending cases does not imply that the trial court denied the motion to dismiss based
on entrapment. Because a trial court speaks only through its orders and judgments, People v Collier,
105 Mich App 46, 52; 306 NW2d 387 (1981), we find no record support for defendant’s position that
*Former Court of Appeals judges, sitting on the Court of Appeals by assignment pursuant to
Administrative Order 1996-10.
**Former Supreme Court justice, sitting on the Court of Appeals by assignment pursuant to
Administrative Order 1996-10.
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the trial court decided the issue of entrapment. Limiting our review to the existing record, Admiral Ins
Co v Columbia Casualty Ins Co, 194 Mich App 300, 305; 486 NW2d 351 (1992), we conclude
that defendant abandoned his claim of entrapment by not following through on this issue after the
October 12, 1993 hearing by requesting a decision from the trial court. See People v Riley, 88 Mich
App 727, 731; 279 NW2d 303 (1979).
With regard to defendant’s second issue, we agree that a guilty plea does not waive a double
jeopardy claim. People v Hellis, 211 Mich App 634, 639; 536 NW2d 587 (1995). However, a
prerequisite to having a newly raised claim considered on appeal is that there be a sufficient record to
decide the issue. People v Snow, 386 Mich 586, 591; 194 NW2d 314 (1972). The instant record
does not contain factual development on the forfeiture action. Moreover, on the authority of United
States v Ursery, 518 US ___ ; 116 S Ct 2135 ; 135 L Ed 2d 549 (1996), we reject defendant’s
claim as lacking legal merit because an in rem civil forfeiture is neither punishment nor criminal for
purposes of the Double Jeopardy Clause.
Affirmed.
/s/ Daniel F. Walsh
/s/ Robert P. Griffin
/s/ Walter P. Cynar
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