Opinion
Docket No. 78-2324.
Decided November 7, 1978.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Robert E. Leonard, Prosecuting Attorney, and Donald A. Kuebler, Chief, Appellate Division, for the people.
Richard L. Austin, for defendant on appeal.
Before: J.H. GILLIS, P.J., and D.E. HOLBROOK and R.M. MAHER, JJ.
Defendant was originally charged with forgery, contrary to MCL 750.248; MSA 28.445, however, pursuant to a plea agreement this charge was dropped when the defendant pled guilty to a second count of possession with intent to circulate a credit card, contrary to MCL 750.157(p); MSA 28.354(15). The maximum penalty for this offense is four years incarceration and/or a fine of $2,000. On December 11, 1975, defendant was sentenced to imprisonment for 47 to 48 months, with credit for 87 days served. He appeals, claiming alternatively that the sentence imposed violates the indeterminate sentencing act, MCL 769.8; MSA 28.1080, or, that the trial court erred in failing to inform the defendant that the act was not applicable to him.
At sentencing, the court stated that the defendant had two previous felony convictions, and at the time was on parole. Under People v Ungurean, 51 Mich. App. 262; 214 N.W.2d 873 (1974), and People v Banks, 73 Mich. App. 492; 252 N.W.2d 501 (1977), the indeterminate sentencing act does not apply to him.
GCR 1963, 785.7 sets forth quite specifically the procedure to be followed in accepting guilty pleas. It has been embellished by the Supreme Court in Guilty Plea Cases, 395 Mich. 96; 235 N.W.2d 132 (1975), and in other individual cases. Neither 785.7 nor the decisions interpreting it require that the plea-taking court inform the defendant of any rights under the indeterminate sentencing act. While the similar problem of habitual offenders is explicitly included within the mandatory instructions of GCR 1963, 785.7, we refuse to expand the Supreme Court's considered and detailed instructions by analogy.
Affirmed.
I respectfully dissent.
I am of the opinion that the indeterminate sentencing act applies to a repeat offender who has not been charged under the habitual offender statute, 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), People v Reese, 83 Mich. App. 186; 268 N.W.2d 340 (1978). The sentence imposed on defendant was in violation of the rule set out in People v Tanner, 387 Mich. 683; 199 N.W.2d 202 (1972).