Opinion
Docket No. 77-2862.
Decided September 19, 1978.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward R. Wilson, Principal Attorney, Appeals, and Timothy Scallen, Assistant Prosecuting Attorney, for the people.
Nelson Kierpiec, for defendant on appeal.
Defendant pled guilty to a charge of violation of probation and was sentenced to a minimum of 28 months and a maximum of 30 months imprisonment. On appeal, he claims this sentence transgressed the limitations set out by the Supreme Court in People v Tanner, 387 Mich. 683; 199 N.W.2d 202 (1972).
The Tanner "two-thirds" rule applies only to sentences under the indeterminate sentencing act. MCL 769.8; MSA 28.1080. By its terms this statute applies to persons "convicted for the first time". Defendant has a prior felony conviction. Therefore, the trial court was not bound by the Tanner rule. People v Makidon, 84 Mich. App. 287; 269 N.W.2d 568 (1978), People v Malchi White, 81 Mich. App. 226; 265 N.W.2d 100 (1978), People v Banks, 73 Mich. App. 492; 252 N.W.2d 501 (1977).
Affirmed.
McGREGOR, J., concurred.
I do not agree that the court was not bound by the limitations of People v Tanner, 387 Mich. 683; 199 N.W.2d 202 (1972). Defendant is only a repeat and not an habitual offender. Accordingly, on the authority of 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), the sentence should be modified to a term of 20 months to 30 months, to reflect the mandate of People v Tanner, supra.