People v. McCoy

Full title: PEOPLE v McCOY

Court: Michigan Court of Appeals

Date published: Aug 1, 1989

179 Mich. App. 559 (Mich. Ct. App. 1989)

446 N.W.2d 306

Opinion

Docket No. 110764.

Decided August 1, 1989.

Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, L. Brooks Patterson, Prosecuting Attorney, Robert C. Williams, Chief, Appellate Division, and Margaret G. Horenstein, Assistant Prosecuting Attorney, for the people.

Lynn Rose, for defendant on appeal.

Before: HOOD, P.J., and BEASLEY and SHEPHERD, JJ.

PER CURIAM.

Defendant, Robert Lee McCoy, pled guilty to larceny in a building, MCL 750.360; MSA 28.592, and to being an habitual offender, fourth offense, MCL 769.12; MSA 28.1084. Defendant was sentenced to serve not less than 1 1/2 nor more than 4 years in prison, which sentence was vacated and enhanced pursuant to the habitual offender statute to not less than 2 nor more than 15 years in prison.

Defendant appeals as of right, first claiming that the sentencing information report was incorrectly scored and that he should be resentenced based on a correctly scored SIR. This claim is without merit. The sentencing guidelines do not apply to habitual offender sentences.¹ The sentence from which defendant appeals is that on the habitual offender conviction. Furthermore, although reviewing the recommendation, the guidelines were not relied upon by the trial court in fashioning and imposing the sentence as an habitual offender.

1 People v Sanders, 163 Mich. App. 606, 612; 415 N.W.2d 218 (1987).

Second, defendant claims that, contrary to the trial court's ruling, his motion for resentencing was timely filed. We agree. In People v Walker, ² the Supreme Court held that in order to preserve an SIR misscoring issue, the defendant must (a) bring the matter to the trial court's attention at or before sentencing, (b) file a motion within the time period for filing a motion for new trial, or (c) file a timely motion to remand in this Court.

2 428 Mich. 261, 266; 407 N.W.2d 367 (1987).

In this case, neither procedure (a) nor (c) has been utilized by defendant. Thus, the matter turns on whether procedure (b) was followed. In stating this procedure in Walker, the Supreme Court, by way of footnote, cited MCR 7.204(A)(2)(b) and MCL 770.2; MSA 28.1099. The cited statute states that, generally, a motion for new trial must be filed within sixty days after entry of judgment. The court rule, on the other hand, refers to new trial motions filed within fifty-six days after entry of judgment. Further, while not mentioned in Walker, MCR 7.204(A)(3)(b) specifically provides that, where a conviction is obtained by way of a plea of guilty or nolo contendere, a motion for resentencing is timely if filed within fifty-six days after the filing of the sentencing transcript.

Defendant's motion for resentencing was filed on May 18, 1988 — seventy-nine days after entry of the amended judgment of sentence and forty-nine days after the transcript of sentencing was filed. Thus, while defendant's motion was not timely under the statute, it was timely under MCR 7.204(A)(3)(b). Where there is a direct conflict between a court rule and a statute, the court rule is to be deemed controlling.³ Accordingly, defendant's motion for resentencing was timely.

3 MCR 1.104; and see generally Perin v Peuler (On Reh), 373 Mich. 531, 540-543; 130 N.W.2d 4 (1964).

We note that in Wayne County Prosecutor v Recorder's Court Judge, ⁴ another panel of this Court read the Walker reference to a motion for resentencing filed within the time period for a motion for new trial as implicating the time frame of MCR 2.611(B) (twenty-one days after entry of judgment). However, subchapter 2.000 of the court rules governs civil procedure. The rules of civil procedure do not apply to criminal cases where a statute or court rule provides a different procedure.⁵ Since MCL 770.2; MSA 28.1099, part of Michigan's Code of Criminal Procedure, sets forth a time limit for new trial motions of sixty days after judgment, it supersedes the civil rule setting forth a twenty-one-day time limit on such motions.⁶ Further, in the specific context of motions for resentencing, where a motion is filed within fifty-six days of the filing of the transcript, it is timely under MCR 7.204(A)(3)(b), regardless of whether the motion is filed within sixty days of entry of the judgment of sentence.

4 164 Mich. App. 740, 747; 417 N.W.2d 594 (1987).

5 MCR 6.001(A)(3).

6 People v Holbrook, 60 Mich. App. 628, 634; 231 N.W.2d 469 (1975) (holding that the time limit in MCL 770.2; MSA 28.1099 controls vis-a-vis the time limit in GCR 1963, 527.2 [precursor to MCR 2.611(B)]).

Affirmed.