Opinion
Docket No. 59610.
Decided January 7, 1983.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Deputy Chief, Civil and Appeals, and Carolyn Schmidt, Assistant Prosecuting Attorney, for the people.
State Appellate Defender (by R. Steven Whalen), for defendant on appeal.
Defendant pled guilty to second-degree murder, MCL 750.317; MSA 28.549. Defendant was sentenced to imprisonment for 20 to 40 years and appeals by right.
Reversal is required because the court failed to inform defendant at the plea-taking proceeding that he could not be placed on probation. GCR 1963, 785.7(1)(f); People v Rogers, 412 Mich. 669; 316 N.W.2d 701 (1982). This error was not cured when the court later informed defendant at sentencing that he could not be placed on probation. The error was not cured because defendant's plea had already been accepted at that time, because the court mistakenly told defendant that he had been given this information at the plea-taking proceeding, and because the court did not offer defendant an opportunity to withdraw his plea. The prosecution contends that Rogers should not be applied retroactively to this case, but that position appears untenable in view of the numerous instances in which the Supreme Court has applied Rogers to reverse cases which arose before Rogers was decided. See People v Willie Johnson, 413 Mich. 898; 319 N.W.2d 1 (1982); People v Crousore, 413 Mich. 898; 319 N.W.2d 1 (1982); People v Sylvester, 413 Mich. 899; 319 N.W.2d 2 (1982); People v Young, 413 Mich. 900; 319 N.W.2d 537 (1982); People v McGee, 413 Mich. 928 (1982); People v Bomers, 413 Mich. 928 (1982); People v Crigler, 413 Mich. 931 (1982); People v Roy Clay, 413 Mich. 932 (1982), and People v Lloyd, 413 Mich. 932 (1982).
To prevent the issue from arising on remand, we will briefly deal with another issue raised by defendant. At sentencing, the judge stated:
"I think the order of sentence should also contain a provision that you are not to be granted any parole until such time as the physicians are satisfied that you no longer have a mental illness. And it will require the permission of either myself or my successor."
The order of sentence contained the provision specified by the judge.
A judge has only those sentencing powers conferred by statute. People v Neil, 99 Mich. App. 677, 680-681; 299 N.W.2d 23 (1980). No statute gives the sentencing judge the power to impose such a condition as that imposed here. Under the indeterminate sentencing law, the power to grant or deny parole is vested in the parole board. People v Burton, 396 Mich. 238, 243; 240 N.W.2d 239 (1976). The condition imposed here infringes upon the parole board's jurisdiction. While in some circumstances parole may not be granted if the sentencing judge or his successor objects, MCL 791.234(4); MSA 28.2304(4), we hold that the judge's discretion in that regard must be exercised at the time the question of parole arises and in light of the circumstances then presented.
Reversed and remanded.