Opinion
Docket No. 69524.
Decided October 12, 1983.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Judy A.H. Hughes, Prosecuting Attorney, and Jann Ryan Baugh, Assistant Attorney General, for the people.
State Appellate Defender (by P.E. Bennett), for defendant on appeal.
Before: D.E. HOLBROOK, JR., P.J., and R.B. BURNS and ALLEN, JJ.
Originally charged with breaking and entering a store, MCL 750.110; MSA 28.305, defendant pled guilty November 5, 1982, to an added count of larceny in a building, MCL 750.360; MSA 28.592. In exchange for the plea, the prosecution dismissed the original charge. On December 3, 1982, defendant was sentenced to five years probation, with the first year to be served in the county jail, a $50 fine, costs of $500, and restitution of $90.
Defendant appeals raising the atypical claim that the sentence of five years on probation exceeds the statutory maximum (four years imprisonment) for larceny in a building. The issue raised is one of first impression. Defendant hypothesizes that if he had been sentenced to prison for the maximum of four years and a minimum of one year, he would have been released on parole at the end of one year, and would have been kept on parole for three years, but by reason of being placed on probation after the initial year, he is forced to serve four years on probation rather than three years on parole.
We are constrained to disagree on two grounds. First, there is such a substantial difference between imprisonment in a state prison and probation, despite the numerous conditions imposed on probation, that it is unrealistic to argue that five years probation is more severe than four years in prison. Second, there is no assurance that, had defendant been sentenced to prison, he would have received a minimum of one year. The maximum minimum for larceny from a store is two years and eight months. People v Bullock, 48 Mich. App. 700; 211 N.W.2d 108 (1973); People v Midgyett, 49 Mich. App. 663; 212 N.W.2d 754 (1973). It is eminently probable that if the trial judge had felt the defendant should be sentenced to prison he would have imposed more than a minimum prison sentence of one year.
Citing People v Sturdivant, 412 Mich. 92; 312 N.W.2d 622 (1981), defendant also claims that the fifth year of probation is multiple punishment, beyond the four-year sentence limitation for larceny in a building. The obvious flaw in this argument is the assumption that probation is so similar to imprisonment that the maximum period of probation can never exceed the maximum period of imprisonment. Furthermore, counsel overstates the holding in Sturdivant, which holds no more than that, if probation is violated, defendant is entitled to credit for the time spent in custody as a condition of probation. For example, if defendant had been sentenced to four years probation with the first year to be spent in the county jail, and subsequently had violated his probation and was then sentenced to the four-year statutory maximum without credit for the one year spent in the county jail, he would then have been confined for one year more than the four-year maximum.
Finally, defendant argues that the trial judge failed to inform him of the maximum probation term. GCR 1963, 785.7(1)(b) requires the court to inform the defendant of the maximum possible prison sentence. There is no comparable provision for maximum probation term.
Affirmed.