Opinion
Docket No. 120630.
Decided January 2, 1991, at 9:10 A.M.
Frank J. Kelley, Attorney General, Gay Secor Hardy, Solicitor General, Robert C. Williams, Chief, Appellate Division, and Graham K. Crabtree, Assistant Prosecuting Attorney, for the people.
James A. Carlin, for the defendant on appeal.
Before: MacKENZIE, P.J., and McDONALD and MURPHY, JJ.
On February 16, 1989, defendant pled guilty of delivery of less than fifty grams of cocaine, MCL 333.7401(2)(a)(iv); MSA 14.15(7401)(2) (a)(iv), and was sentenced to life probation. Following a hearing on July 13, 1989, she was found guilty of violating her probation and sentenced to a term of six months to twenty years' incarceration. The people appeal this sentence as of right. We vacate defendant's sentence and remand for resentencing.
Effective March 30, 1988, the people may appeal as of right the sentence of a criminal defendant. MCL 770.12; MSA 28.1109; People v Reynolds, 181 Mich. App. 185; 448 N.W.2d 774 (1989).
MCL 771.4; MSA 28.1134 provides that when probation is revoked "the court may proceed to sentence the probationer in the same manner and to the same penalty as the court might have done if the probation order had never been made." Thus, the sentence imposed upon a probation violation must be in accordance with the permissible sentence for the underlying offense itself. People v Maxson, 163 Mich. App. 467, 470; 415 N.W.2d 247 (1987).
The underlying offense in this case, MCL 333.7401(2)(a)(iv); MSA 14.15(7401)(2)(a)(iv), makes delivery of less than fifty grams of cocaine punishable by imprisonment for not less than one year nor more than twenty years and a fine of not more than $25,000 or placement on probation for life. Pursuant to MCL 333.7401(4); MSA 14.15(7401)(4), the court may depart from the minimum term only if it finds on the record that there are substantial and compelling reasons to do so.
In this case, the trial court did not state substantial and compelling reasons for departing from the one-year minimum sentence set forth at MCL 333.7401(2)(a)(iv); MSA 14.15(7401)(2)(a)(iv). We therefore vacate defendant's sentence and remand for resentencing. On remand, the court shall either sentence as mandated by MCL 333.7401(2)(a) (iv); MSA 14.15(7401)(2)(a)(iv) or state on the record substantial and compelling reasons for departure from the statute's minimum term.
Vacated and remanded for further proceedings consistent with this opinion. We retain no further jurisdiction.