Opinion
Docket No. 16652.
Decided May 2, 1974. Leave to appeal denied.
Appeal from Recorder's Court of Detroit, Vincent J. Brennan, J. Submitted Division 2 February 12, 1974, at Detroit. (Docket No. 16652.) Decided May 2, 1974. Leave to appeal denied, 392 Mich. 774.
Leroy Wright was convicted of manslaughter. Defendant appeals by leave granted. Affirmed.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Dominick R. Carnovale, Chief, Appellate Department, and Arthur N. Bishop, Assistant Prosecuting Attorney, for the people.
Carl Ziemba, for defendant on appeal.
Before: LESINSKI, C.J., and McGREGOR and T.M. BURNS, JJ.
On November 2, 1967, defendant pled guilty to manslaughter pursuant to MCLA 750.321; MSA 28.553. He was sentenced to a term of 14 to 15 years on November 16, 1967, and appealed. On appeal defendant alleged that his sentence was in violation of MCLA 769.8; MSA 28.1080, the indeterminate sentence law. This Court affirmed. See People v Wright, 14 Mich. App. 242; 165 N.W.2d 487 (1968).
On January 19, 1973, defendant brought a postconviction motion in the trial court to set aside his plea alleging failure to comply with People v Butler, 387 Mich. 1; 195 N.W.2d 268 (1972), and People v Jaworski, 387 Mich. 21; 194 N.W.2d 868 (1972), which motion was denied. Delayed leave to appeal was granted on May 31, 1973, by this Court, limited to the question of whether or not defendant's sentence of 14 to 15 years is in violation of the indeterminate sentence law, MCLA 769.8; MSA 28.1080 and People v Tanner, 387 Mich. 683; 199 N.W.2d 202 (1972).
Defendant contends that the principle enunciated in Tanner should be applied retroactively to invalidate his sentence of 14 to 15 years.
In People v Tanner, supra, the Court said:
"Based upon the principles analyzed and discussed in People v Hampton, 384 Mich. 669 (1971), we hold that the decision herein is prospectively limited to those cases in which sentence is to be or has been imposed after date of filing of this opinion and to those cases which on date of filing this opinion are pending on appeal and which have properly raised and preserved the issue for appeal. Sentences imposed prior to date of this decision and not pending on appeal upon properly preserved specific issue shall not be affected by the rule herein adopted."
In People v Knopek, 47 Mich. App. 530, 534; 209 N.W.2d 722 (1973), quoting People v Alvin Reed, 43 Mich. App. 556, 558; 204 N.W.2d 319 (1972), we stated as follows:
"`It is our opinion that Tanner is applicable to any sentence imposed after July 26, 1972, and to any case in which an appeal was pending on July 26, 1972, and the Tanner issue was briefed at any time during pendency of the appeal.'"
The Michigan Supreme Court declared in Tanner that its decision in that case would be "prospectively limited" and sentences imposed prior to the date of that decision and not pending on appeal are not to be affected by the rule stated in that case. Thus, since defendant's sentence was not pending on appeal at the time Tanner was decided, we are unable to give defendant the benefit of the rule enunciated in Tanner.
Affirmed.