Opinion
Docket No. 57094.
Decided August 24, 1982.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Robert L. Kaczmarek, Prosecuting Attorney, and Matthew Dambro, Assistant Prosecuting Attorney, for the people.
E. Brady Denton, for defendant.
Pursuant to her plea of guilty to larceny in a building, MCL 750.360; MSA 28.592, defendant was sentenced to serve six months in the Saginaw County jail. The trial court commented at defendant's sentencing hearing held January 5, 1981, that her case would be reviewed after three months incarceration. After defendant had served approximately 2-1/2 months of her sentence, she brought a motion to suspend the remainder of her sentence. A hearing was held on this motion on March 23, 1981, at which time the prosecutor argued that the court was not empowered to reduce sentences. The trial court suspended the remaining sentence, and the people appeal by right from that ruling.
It is important to note that we are not here concerned with the authority of a sentencing judge to alter or amend a probation order. Defendant's jail sentence was not imposed as part of probation. The issue is whether the circuit court has the power to suspend a validly imposed jail sentence after a defendant begins to serve it.
In the recent case of People v Whalen, 412 Mich. 166, 169; 312 N.W.2d 638 (1981), the Supreme Court stated:
"In Michigan a trial court's authority to resentence a defendant is limited. In People v Fox, 312 Mich. 577, 582; 20 N.W.2d 732 (1945), this Court held that a trial court is without authority to set aside a valid sentence and impose a new one, because to do so `would infringe upon the exclusive power of the governor under the Constitution to commute sentence'.
"A court's authority to resentence depends, therefore, on whether the previously imposed sentence is invalid." (Footnote omitted.)
Defendant does not contest this principle, and does not contend that the original sentence was invalid. Defendant argues, however, that the action of the trial judge in granting defendant's motion to suspend the sentence was not a change of sentence or a resentencing, but was a suspension of sentence which was within the court's power. We disagree.
The suspension of a sentence temporarily or indefinitely postpones the imposition or the commencement of the sentence. Whatever power a trial judge has in that regard disappears once the sentence begins. "The authority of the trial judge over the defendant ceases when a valid sentence has been pronounced and the defendant enters upon his imprisonment." 2 Gillespie, Michigan Criminal Law Procedure (2d ed), § 751, p 459. See, also, People v Barfield, 411 Mich. 700; 311 N.W.2d 724 (1981).
If the power to suspend included the power to interrupt a sentence already commenced and to absolve the defendant from serving the balance, it would be indistinguishable from the power to commute — a power which, according to People v Whalen, supra, is reserved by the constitution exclusively to the governor.
At the time of sentencing, the trial court indicated on the record that it intended to review the sentence after three months had been served. We do not see how this improves defendant's position. An expressed intention to review the sentence could not create a power in the court which it did not have.
Reversed.
D.F. WALSH, P.J., concurred.
I must respectfully dissent. On January 5, 1981, the trial judge sentenced the defendant to a straight six-month term in the county jail, however, he conditioned the sentence to provide for the review of the sentence in about three months and the release of the defendant earlier than six months depending on the defendant's efforts to improve herself. Additionally, the trial judge stated that if the defendant were working full time, she would be released for work parole.
On March 23, 1981, the trial court, after taking proofs and hearing argument, suspended the remaining sentence upon repayment by the defendant of $425 expended in her behalf for attorney fees. The defendant made the payment as ordered.
By the trial court's own order, authority over the defendant had not passed out of the trial judge's hands. It would appear that the sentence, as originally imposed, was at least ambiguous, requiring a remand for resentencing. Justice will not be served, under the circumstances herein, by returning the defendant to jail. I would affirm.