Opinion
Docket No. 49654.
Decided July 23, 1981.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Robert E. Weiss, Prosecuting Attorney, and Donald A. Kuebler, Chief, Appellate Division, for the people.
Craig J. Drewett, for defendant on appeal.
The defendant was originally charged with a single count of extortion. MCL 750.213; MSA 28.410. He was convicted after a one-day bench trial and was sentenced to serve from 15 to 20 years imprisonment on November 18, 1971. He appealed and we affirmed the conviction, but remanded the matter for resentencing to comply with People v Tanner, 387 Mich. 683; 199 N.W.2d 202 (1972). The trial court resentenced the defendant to serve from 13 to 20 years imprisonment.
Still believing himself a victim of gross injustice, the defendant petitioned the federal district court for habeas corpus relief, contending that the failure of the prosecuting attorney to disclose contempt proceedings against the complainant prior to the circuit court trial constituted suppression of evidence. The federal district court, Lawrence Gubow, J., granted the prosecution's motion to dismiss. The circuit court of appeals remanded the matter to the federal district court for an evidentiary hearing, on the basis that the record before it was incomplete. Dorsey v Warden, 523 F.2d 590 (CA 6, 1975). Judge Gubow determined that the defendant should have a new trial and the matter was remanded to the Genesee County Circuit Court for that purpose.
Pending trial, defendant was admitted to bail and released on July 28, 1976. He immediately moved his criminal enterprises to Bay County where he was arrested and charged with armed robbery and forgery, uttering and publishing. While awaiting trial on those charges, he escaped and fled to the State of Washington. When defendant failed to appear for his new trial, scheduled January 7, 1977, a bench warrant for his arrest was issued. More than two years later he was returned from Washington to face the Michigan charges, after having been sentenced to serve a term of imprisonment in Washington for crimes committed there.
Defendant then entered into a plea bargain with the Genesee County prosecutor and, on October 30, 1979, pled guilty to the reduced charge of attempted extortion. The trial court sentenced the defendant to serve five years probation, assessing $700 in court costs and directing that the last six months of the probation period be spent in the Genesee County jail as a term of probation. Sentence was pronounced on November 8, 1980. At the sentence hearing, defense counsel objected to any additional jail time being imposed because defendant had already served more than the statutory maximum of five years for this offense.
While the Michigan Supreme Court has especially eschewed sentence review on appeal, People v Burton, 396 Mich. 238, 243; 240 N.W.2d 239 (1976), we find defendant's argument well taken. What is at issue here is whether the trial court properly imposed any sentence at all, the defendant having already been incarcerated in Michigan for at least the maximum possible sentence. We recognize that in any case where probation is ordered, the court may require the probationer to spend up to six months in a local detention facility, either in one block of time, or at a fixed interval, at the direction of the court. MCL 771.3; MSA 28.1133.
However, we also recognize statute and case law holding that when a void sentence is set aside and a new sentence is imposed, any time served on the void sentence must be credited against the sentence then imposed. MCL 769.11a; MSA 28.1083(1), People v Sims, 38 Mich. App. 127, 130; 195 N.W.2d 766 (1972), People v Clark, 43 Mich. App. 476, 487-488; 204 N.W.2d 332 (1972). Thus, we conclude that the defendant has served his full sentence in this state (the court not having considered any time served in the State of Washington for other crimes), and that any additional sentence imposed by the trial court is void and must be vacated.
The conviction in this case is affirmed, but the sentence imposed is vacated, and the defendant is ordered discharged.