Opinion
Docket No. 67978.
Decided January 6, 1984.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, George B. Mullison, Prosecuting Attorney, and Thomas J. Rasdale, Assistant Prosecuting Attorney, for the people.
State Appellate Defender (by Stuart B. Lev), for defendant.
Before: DANHOF, C.J., and M.J. KELLY and BEASLEY, JJ.
Defendant pled guilty as charged to attempted larceny in a building, MCL 750.92; MSA 28.287 and MCL 750.360; MSA 28.592, and to a supplemental information charging him with being an habitual offender, MCL 769.12; MSA 28.1084. He was sentenced to five years probation with the first six months to be served in the Bay County Jail. Defendant now appeals his conviction as of right, raising two issues.
Defendant first contends that the trial court erred in treating his conviction of attempted larceny in a building as a felony for purposes of the habitual offender and length of probation provisions of the Code of Criminal Procedure. MCL 769.12; MSA 28.1084 and MCL 771.2; MSA 28.1132. Prior to submitting his plea, defendant moved to dismiss the supplemental information on the ground that the principal charge was for a misdemeanor offense and thus did not trigger the habitual offender statute. The trial court denied defendant's motion.
Defendant correctly argues that under the Michigan Penal Code, attempted larceny in a building is a misdemeanor offense punishable by a term in prison of not more than two years. MCL 750.92; MSA 28.287 and MCL 750.503; MSA 28.771. However, the Code of Criminal Procedure defines felony for purposes of that statute as "a violation of a penal law of this state for which the offender, upon conviction, may be punished by death or by imprisonment for more than one year". MCL 761.1(g); MSA 28.843(g). The majority view of this Court is that a two-year misdemeanor under the penal code will be construed as a felony for purposes of the Code of Criminal Procedure. See People v Reuther, 107 Mich. App. 349; 309 N.W.2d 256 (1981) (but see Judge BRONSON'S partial concurrence and partial dissent); People v Stiles, 99 Mich. App. 116; 297 N.W.2d 631 (1980), lv den 410 Mich. 891 (1981); People v Rosecrants, 88 Mich. App. 667; 278 N.W.2d 713 (1979); People v Bernard Smith, 81 Mich. App. 561; 266 N.W.2d 40 (1978), rev'd on other grounds 406 Mich. 926; 277 N.W.2d 506 (1979). For a contrary view see People v Alford, 104 Mich. App. 255; 304 N.W.2d 541 (1981). We follow the majority view and hold that the trial court did not err in applying the habitual offender and length of probation provisions of the Code of Criminal Procedure.
Defendant next contends that the trial court erred in refusing to award defendant credit on his jail sentence for time already served while awaiting trial. We agree. MCL 769.11b; MSA 28.1083(2) provides:
"Whenever any person is hereafter convicted of any crime within this state and has served any time in jail prior to sentencing because of being denied or unable to furnish bond for the offense of which he is convicted, the trial court in imposing sentence shall specifically grant credit against the sentence for such time served in jail prior to sentencing." See also GCR 1963, 785.8(3).
This Court has construed the statute to be mandatory in nature. People v Lyles, 76 Mich. App. 688, 690; 257 N.W.2d 220 (1977); People v Donker, 70 Mich. App. 692, 694; 247 N.W.2d 330 (1976); People v Peterson, 62 Mich. App. 258, 260-261; 233 N.W.2d 250 (1975), lv den 397 Mich. 811 (1976). Such a construction is necessitated by the general purpose of the statute which is to put the indigent defendant who cannot post bail on an equal status with the defendant who can. People v Davis, 87 Mich. App. 72, 73; 273 N.W.2d 591 (1978); People v Cantu, 117 Mich. App. 399, 402; 323 N.W.2d 719 (1982). The fact that the trial court may have granted a lenient sentence in light of the time already served does not satisfy the credit requirement. People v Lyles, supra; People v Chattaway, 18 Mich. App. 538, 541; 171 N.W.2d 801 (1969). However, because defendant has been discharged from probation in the State of Michigan to serve sentences in Alabama, we do not remand for resentencing.
Affirmed.