Opinion
Docket No. 77-3178.
Decided September 5, 1978.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward R. Wilson, Principal Attorney, Appeals, and Nels Olson and Robert M. Morgan, Assistants Prosecuting Attorney, for the people.
William R. McFadden, for defendant on appeal.
Defendant does not appeal from his July 11, 1977, plea-based conviction of attempted possession of heroin contrary to MCL 750.92, 335.341(4)(a); MSA 28.287, 18.1070(41)(4)(a), wherein he was sentenced to a prison term of 1 year, 11 months, to 2 years. He does, however, appeal from the sentence, alleging that he was denied his right of allocution prior to sentencing in conformity with GCR 1963, 785.8(2) and he further contends that the minimum prison sentence of 1 year, 11 months, violates People v Tanner, 387 Mich. 683; 199 N.W.2d 202 (1972).
There is ample support in the record for his first argument, and, therefore, we would remand the case for resentencing with the defendant having the right to advise the court of any circumstances he believes the court should consider in imposing sentence.
Inasmuch as the indeterminate sentence act (MCL 769.8; MSA 28.1080) only applies to one convicted of a crime for the first time, it does not apply to the instant case wherein the defendant had prior felony convictions. Defendant's sentence is therefore controlled by People v Banks, 73 Mich. App. 492; 252 N.W.2d 501 (1977). Accordingly, the trial court did not err in setting defendant's sentence at 1 year, 11 months to 2 years.
Remanded for proceedings consistent with this opinion.
McGREGOR, J., concurred.
An examination of the record indicates that the trial judge failed to comply substantially with GCR 1963, 785.8(2), 785.9. I agree, therefore, that this case should be remanded to the trial court for resentencing in conformance with these court rules. See People v Elijah Smith, 68 Mich. App. 551; 243 N.W.2d 681 (1976).
However, since defendant was a repeat offender and not an habitual offender, I believe that the indeterminate sentence act does apply to his situation and that his minimum prison sentence of 1 year and 11 months therefore violates People v Tanner, 387 Mich. 683; 199 N.W.2d 202 (1972). See People v Redwine, 73 Mich. App. 83; 250 N.W.2d 550 (1976), People v Reginald Harris, 80 Mich. App. 228; 263 N.W.2d 40 (1977), and People v Reese, 83 Mich. App. 186; 268 N.W.2d 340 (1978).
Accordingly I would remand to the trial court for allocution and resentencing in accordance with People v Tanner, supra.