Summary
In People v Redwine, 73 Mich. App. 83; 250 N.W.2d 550 (1976), a panel of this Court held (2 to 1) that a defendant who is an habitual offender, although not charged as such, comes within the purview of the indeterminate sentencing act and must be given an indeterminate sentence.
Summary of this case from People v. LanghamOpinion
Docket No. 27365.
Decided December 10, 1976. Leave to appeal applied for.
Appeal from Genesee, Ollie B. Bivins, Jr., J. Submitted July 6, 1976, at Lansing. (Docket No. 27365.) Decided December 10, 1976. Leave to appeal applied for.
Larry L. Redwine was convicted, on his plea of guilty, of attempted larceny in a building. Defendant appeals. Affirmed with modified sentence.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Robert F. Leonard, Prosecuting Attorney, and Donald A. Kuebler, Chief, Appellate Division, for the people.
Gary W. Brasseur, for defendant.
Defendant pled guilty to attempted larceny in a building, MCLA 750.360; MSA 28.592, and was sentenced to a term of 23 to 24 months in prison. He does not appeal the conviction but only the sentence.
Defendant cites People v Tanner, 387 Mich. 683; 199 N.W.2d 202 (1972), and claims that the sentence imposed violated the indeterminate sentencing act, MCLA 769.8; MSA 28.1080. The people disagree, arguing that the indeterminate sentencing act does not apply to habitual or multiple criminal offenders and rely on People v Ungurean, 51 Mich. App. 262; 214 N.W.2d 873 (1974), for the proposition that prior felony convictions preclude the defendant from claiming he is entitled to an indeterminate sentence in this case.
We are persuaded that Ungurean, supra, does not control for two reasons. First, here, unlike Ungurean, the defendant was not charged or convicted under the habitual criminal act, MCLA 769.12; MSA 28.1084. Secondly, the Supreme Court has applied Tanner to cases in which the defendant had committed prior felonies. In the case of People v Haggitt, 33 Mich. App. 95; 189 N.W.2d 842 (1971), the defendant had received a 14 year 11 month to 15 year sentence. This Court upheld the sentence on the basis of the "trial court's discretion", which could take into consideration the defendant's prior record. People v Jordan, 33 Mich. App. 15; 189 N.W.2d 851 (1971), involved another prior felony offender who had received the same sentence as Haggitt. Judge LEVIN dissented in both Haggitt and Jordan on the grounds later adopted by the Supreme Court in Tanner. No one discussed the "first conviction" language in the sentencing statute, although Judge LEVIN argued that since the defendants had not been charged under the habitual criminal act, the sentence could not be upheld by reference to those sections. The Supreme Court reversed both Jordan and Haggitt, and remanded for sentencing in accord with Tanner. 388 Mich. 773; 200 N.W.2d 321 (1972). The issue of prior convictions was never discussed.
Accordingly, defendant's minimum sentence is modified to 16 months pursuant to GCR 1963, 820.1(7). See People v Duffy, 67 Mich. App. 266; 240 N.W.2d 771 (1976).
Affirmed as modified.
BASHARA, P.J., concurred.
I respectfully dissent. This was not the first conviction of defendant after enactment of the statute permitting indeterminate sentencing. 1927 PA 175 grants to circuit judges the basic authority to sentence but restricts the penalty so that it will not be greater than the penalty prescribed by law (Ch IX, § 1). MCLA 769.1; MSA 28.1072. A further limitation is placed on that general authority by Ch IX, § 8, 1927 PA 175 (MCLA 769.8; MSA 28.1080), which provides:
"When any person shall hereafter be convicted for the first time of crime committed after this act takes effect * * * the court imposing sentence shall not fix a definite term of imprisonment, but shall fix a minimum term * * *. The maximum penalty provided by law shall be the maximum sentence". (Emphasis added.)
The phrase "for the first time" was added to the language formerly contained in 1905. PA 184. When the Legislature adds words it must be considered intentional.
People v Biniecki, 35 Mich. App. 335; 192 N.W.2d 638 (1971), recognizes a conviction for escape from prison cannot be a conviction "for the first time" and holds not only that the sentence may be consecutive as authorized by statute but also it may be for a definite additional term rather than an indeterminate sentence.
People v Bowns, 39 Mich. App. 424; 197 N.W.2d 834 (1972), held that even though escape from prison was not a conviction "for the first time" the sentence could be an indeterminate sentence.
In the case here at issue the sentence was for 23 months to 24 months. It was apparently the judge's purpose to sentence for as long a period as possible. "The sentence imposed cannot be treated as a certain, determinate sentence for any period beyond the minimum period fixed therein." In re Forscutt, 167 Mich. 438, 443; 133 N.W. 315 (1911).
People v Ungurean, 51 Mich. App. 262; 214 N.W.2d 873 (1974), while containing some suggestion that a determinate sentence can be imposed for any except a "first conviction" is not really in point.
In re Weir, 342 Mich. 96; 69 N.W.2d 206 (1955), is no authority to the contrary because it does not appear his conviction was other than a first conviction.
People v Lessard, 22 Mich. App. 342; 177 N.W.2d 208 (1970), merely held the judge had failed to exercise his discretion when he imposed an indeterminate sentence. Further, it does not appear this was not Lessard's first conviction.
People v Tanner, 387 Mich. 683; 199 N.W.2d 202 (1972), addresses itself only to the preservation of the policy contained in the indeterminate sentencing provisions of the statute. It does not consider whether an indeterminate sentence is the only type of sentence which can be imposed under the sentencing statutes. It does state, "[n]ote the court did not hold the sentences imposed [in Lessard, supra], to be determinate and thereby in conflict with MCLA 769.8; MSA 28.1080." People v Tanner, supra, at 688. Undoubtedly the section of the statute referred to does mandate an indeterminate sentence for a "first conviction" — but for that only.
The sentencing options available to a court are:
(1) An indeterminate sentence (mandatory) for a first offense,
(2) A determinate sentence (discretionary), or an indeterminate sentence, for a second or subsequent offense, and
(3) Upon special application by the prosecutor, a supplemental determinate or indeterminate sentence for a second, third or fourth offense, with increased maximums.
I would affirm with the sentence set as a determinate sentence for a term of 23 months.