Opinion
Docket No. 62606.
Decided March 9, 1983. Leave to appeal applied for.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Peter D. Houk, Prosecuting Attorney, Janis L. Blough, Chief Appellate Attorney, and Douglas A. Van Epps, Assistant Prosecuting Attorney, for the people.
State Appellate Defender (by Derrick A. Carter), for defendant on appeal.
Before: R.M. MAHER, P.J., and BRONSON and CYNAR, JJ.
Defendant pled guilty to armed robbery, MCL 750.529; MSA 28.797, in exchange for a sentence of 10 to 20 years imprisonment. He appeals by right.
Defendant contends that his conviction should be reversed because the trial court failed to inform him of the mandatory minimum prison sentence for armed robbery.
The armed robbery statute, MCL 750.529; MSA 28.797, states that the crime of armed robbery is a felony and specifies punishment by imprisonment in the state prison "for life or for any term of years".
GCR 1963, 785.7(1)(d) requires the trial court to inform a defendant of the "mandatory minimum prison sentence, if any, for the offense".
Under the crime identified herein, the imposition of a sentence "for life" would not involve a "term of years". When imposing a sentence for "any term of years", the trial court must impose the statutory maximum and set a minimum sentence pursuant to its discretion. The court rule does not mandate a specific minimum but leaves the determination of the minimum to the discretion of the trial court. For instance, the trial judge in a certain case might set a minimum of one year and a day. If this occurs, however, such minimum is imposed not pursuant to a mandate but in the exercise of discretion. It is not correct to label "for life" as the maximum and "any term of years" as the minimum in some instances where an exceptionally high sentence for a term of years is imposed.
The weight of authority at the present time indicates that the language "any term of years" does not establish a mandatory minimum sentence. See People v Luke, 115 Mich. App. 223; 320 N.W.2d 350 (1982); People v Eberly, 110 Mich. App. 349; 313 N.W.2d 123 (1981); People v Earl Jones, 94 Mich. App. 232; 288 N.W.2d 385 (1979), lv den 409 Mich. 854 (1980); People v Landis, 91 Mich. App. 345; 283 N.W.2d 647 (1979); People v Freeman, 73 Mich. App. 568; 252 N.W.2d 518 (1977); People v McKnight, 72 Mich. App. 282; 249 N.W.2d 392 (1976), lv den 399 Mich. 848 (1977). See, also, People v Urynowicz, 412 Mich. 137; 312 N.W.2d 625 (1981).
Because there is no mandatory minimum sentence for armed robbery, the trial court did not err by failing to inform defendant of a mandatory minimum sentence for armed robbery.
Affirmed.
I concur in the result for the reasons stated in my opinion in People v Gray, 121 Mich. App. 788; 329 N.W.2d 493 (1982). I continue to believe that armed robbery carries a mandatory minimum term.
I must dissent.
I believe that the armed robbery statute, MCL 750.529; MSA 28.797, imposes a mandatory minimum sentence. See People v Taylor, 112 Mich. App. 94; 315 N.W.2d 202 (1981). Because the trial court did not inform the defendant of this mandatory minimum sentence before accepting defendant's plea it failed to comply with GCR 1963, 785.7(1)(d). Consequently, I would reverse.