*1 179 v. wanted to she after the know, press and wanted I to know and ‘You told And said, them?’ —‘Yes.’ did And ‘Now, I how think that she said, you way.’ didn’t look answered, ‘Well, he like a who would hoy I do didn’t that, really understand too much of the I to, case.’ want want you careful, to he Now, very I want to want he a say you careful, this is very charge. serious You he careful ought to about very getting into that pitfall.
“If do you your best arrive at verdict know is honest and you arrived at best of then your judgment can you sleep.” Affirmed.
Swainson and Williams, JJ., T. concurred with E. Brennan,
BROWNING MICHIGAN DEPARTMENT OF CORRECTIONS
Opinion of the Court 1. Pardon and Parole —Criminal Law —Dead Time —Words Phrases —Parole Violator —Sentence—Statutes. description The term “dead time” a convenient shorthand of a period, by statute, during running created which the of a suspended (MCLA 791.238). violator’s 2. Pardon and Parole —Criminal Law —Dead Time —Statutes— Presumption Compact. —Interstate Parole parole compact quite The interstate had been existence legislature some time relating when the revised the statute and, such, to “dead time” presumption arises legislature adoption that the was aware of both its and content (MCLA 791.238, when it redefined “dead time” §§ seq.). et Reference Points Headnotes Jur, Pardon, Reprieve, 39 Am Amnesty 81-95. [1-12] §§ Mich 179 Sen- 3. Criminal Time —Sentences—Consecutive Law —Dead Statutes-—Presumption—Leg- Sentences — tences —Concurrent Intent. islative *2 legislature aware of both that presumption obtains
A compact parole interstate of the adoption and content quite some time when it in existence had been which 1968; that Mich- in realized statute dead time amended the sentencing states, consecutive had renounced igan, unlike most ground so to sentencing on that in favor of concurrent the second sentence would render consecutive sentences allow subject undefined and uncertain and to and indefinite uncertain legislature respect contingencies; and recent actions to favor concurrent sen- reflect a clear intent to this statute 791.238). (MCLA tences § and Parole —Statutes—Construction Law —Pardon 4. Criminal —-Legislative Intent —Dead Time —Sentences—Concurrent Sentences. provided parole a violator shall language, that
Deletion only after the first sentence the second sentence serve statutory provisions of annulled, in the last two served Supreme statute, Michigan with the the dead time consonant legislative prior construction, and confirms the reflects Court’s parole a should serve his sentences con- intent that violator currently (MCLA 791.238). § and Parole —Statutes—Concurrent 5. Criminal Law —Pardon Legislative Intent. Time —Parole Violator — Sentences —Dead legislative present dead time statute continues to effect the his con- parole a violator should serve sentences intent that currently and, statutory language when the was revised expressly provide would be to that the “date of arrest” Michigan prison of his for return the date authorities, change meaning no the basic of “dead time” accomplished (MCLA 791.238). was intended or 6. Pardon Parole —Parole Violator —Criminal Law —Dead Time —Arrest. parolee, practical purposes, an
Arrest of in-state for all term- time, prisoner paroled his as a inates within the Mich- igan jurisdiction subsequently parole who is im- violates his mediately upon his available return arrest and issuance (MCLA 791.238.) violation warrant Dept. Corrections v. Mich. and Parole —Parole Violator —Criminal Law —Dead Pardon Compact. Parole Time —Interstate paroled parole compact prisoner A out-state under the interstate against by committing foreign an offense who violates sovereign, his does not have dead time end until he is foreign sovereign for declared available return Michigan; foreign sovereign, under the terms of the com- required parolee pact, is not the out-state until the return satisfied; imposed by sovereign has been begin complete cannot sen- out-state violator prison foreign jurisdic- tence until he finishes his term the (MCLA tion and is handed over to the authorities. 791.238, seq.). 798.101 et §§ 8. Pardon Parole —Criminal Law —Dead Time —Statutes— Compact Interstate Parole Sentences —Sentence —Consecutive Equal —Constitutional Protection. Law — Suspension sentence until the service of the foreign sovereign’s imprisonment effectually imposes term sentences, consecutive as one does not commence until *3 manner, expired, and, operate in other has construed to requirement only the dead time statute not violates the upon statutory express consecutive sentences must be based provisions, invidiously but also sub-elassifies the out-state parolee solely upon geography; the basis of the beneficent purposes parole compact and rehabilitative the interstate require do not this discrimination and the dead time statute strictly so construed would constitute an unreasonable classi- equal protection guarantees; fication violative further, legislative against statute contravenes the manifested intent (MCLA 791.238, seq.). consecutive sentences 798.101 et §§ 9. Criminal Law —Dead and Time —Pardon Parole —Statutes— Legislative Compact Intent —Interstate Parole —Sentence— Consecutive Sentences. pari The dead time statute must be read materia with the parole compact constitutionally interstate effect approved legislative against and well-established intent con- end, secutive phrase sentences and to this “date of avail- ability” availability means actual or constructive for return Michigan penal system to the and parolee, the arrest of a irrespective arrest, coupled the location of the with the parole issuance of a good violation warrant and faith effort parolee, to retake the constitutes constructive (MCLA 791.238, seq.). et §§ [July- and Parole. 10. Criminal Law —Sentence—Pardon constructively Petitioner was available for return to fully year penal obligation and has satisfied his two to ten state, years to this where served over and he two nine months in Michigan prison years, ten served seven months and eight days Georgia Illinois for offenses committed while parole from the sentence. Dissenting Brennan, Black and T. E. JJ. Escape—Criminal Pardon and Parole — Law. 11. prison ending escape No exists between difference effect of felony, parole in another and an rehabilitative effort results in same or worse criminal acts. 12. Pardon Parole —Violations—Sentence—Credit on Sen- tence —Statutes. parolee, Michigan, A is credited with time served on violations; hence, granting petitioner without credit time served on which is violations free of reflects spirit practice and letter statutes and a common (MCLA 791.238). sister states Appeal Court of Division J. H. Appeals, 1, P. Gillis, J., and Levin and Brennan, V. J. order JJ., denying complaint for control in the superintending nature mandamus. Submitted February 3, (No. 26 Term January 52,726- Docket No. 1/2.) Decided July 7, 1971.
Habeas filed in circuit Corpus Jackson court by Bobert D. Browning against Michigan Department of Corrections. Writ denied. Original complaint *4 in Court Appeals of Bobert D. by Browning against the Michigan Department of Corrections for habeas corpus which that Court a treated as for complaint writ of in superintending control the nature of mandamus. Denied. Defendant appeals. Reversed and remanded for of order entry granting writ and discharging petitioner. Browning op the Court persona (Arthur Browning, propria D.
Robert argu- Appellate on oral Defender, Tarnow, State J. ment), for defendant. Attorney A. Kelley, Robert General,
Frank J. H. Free- Derengoski, and Stewart General, Solicitor Attorney defendant. for man, General, Assistant prison a “dead is C. This T. M. Kavanagh, corpus of habeas the form case here in time” petitioner’s inquire the State detention into The term of at Jackson. Prison Southern desription of a “dead time” convenient shorthand during period, by run which the statute,1 a created suspended. ning of violator’s precisely term more defined herein.2 will be Browning on D. was sentenced Petitioner Robert August Court Detroit 22,1958, in Recorder’s prison larceny year crime to ten term two person.3 from the petitioner was 1960,
On December 14, paroled Georgia. terms Under the Summerville, (hereinafter parole compact re- of the interstate Compact”), ferred to as “the Georgia through signatories,4 Georgia, Board its are duties Pardons assumed Paroles, supervision petitioner. over petitioner February 10,
On arrested 1961, Georgia Troopers charges driving while State Georgia intoxicated without a On license. February Georgia added authorities 26, charges robbery. of armed Petitioner was convicted (Stat Supp MCLA Ann 28.2308). 791.238 1971 Cum § § Infra, p 184. 28.589). MCLA Ann (Stat 750.357 1954 Rev The crime years § § punishable imprisonment ten a maximum prison. state seq.); seq. (Stat et 4 MCLA 798.101 et Ann 1954 Rev § Ann Ga Code 27-2701a. *5 179 184 Opinion op the Court charged Georgia and sentenced to of crimes all the imprisonment. Georgia Michigan April De 1961, 4,
Meanwhile, on (hereinafter called “the partment of Corrections Georgia having Department”), informed been of 5 parole warrant charges, violation issued Georgia petitioner’s it to the and forwarded arrest (the Depart our and Paroles “as Pardons Board of Department ment’s) re Thereafter, detainer.” Georgia inquired peatedly authorities as to of particularly petitioner’s to when he status, request made that would be released. No was Michigan petitioner over authorities be turned completing prior Georgia service of his sentences. petitioner released was 1965, 15, On June Michigan custody physical of Georgia into the direct promptly returned to State He was authorities. guilty found was Prison of Southern Georgia convic- parole of his reason of violation was parole 14, December 1960, order of tions. The imprisoned petitioner serv- continued rescinded provisions Under the ice his sentence. (MCLA § [Stat Ann 232 791.238 was PA No 1953, 28.2308]), petitioner § found to have 1954 Rev days years, and five four months four accumulated period his the date of “dead time”, is, 1961) Georgia (February date until the 10, arrest custody physical return (June 1965). 15, authorities paroled petitioner 21, 1965, was On October pursuant Chicago, interstate to the Illinois, where, compact,6 supervision he was under the petitioner February 8,1966, authorities. On Illinois charges attempted arrested on armed rob- police. bery by Chicago subsequently He was (Stat 28.2308). Ann 1954 MCLA 791.238 Rev See § seq. supra. 4, 123-5 et 38, Ill Ann ch fn Smith-Hurd Stat See Opinion op the Court in the years four to five convicted and sentenced to Illinois State Penitentiary. issued a Department 1966,
On February arrest petitioner’s warrant violation *6 au- Illinois with the detainer as a which was filed subsequently Department Although thorities. no release date, earliest as to inquired petitioner’s Mich- turned over to be made that he was request his service completing prior authorities igan Illinois sentence. by the paroled was petitioner August 11, 1969,
On physical into direct and taken authorities Illinois promptly He was officials. Michigan custody by Prison of Southern returned to the State reason his violation by found guilty order of October Illinois conviction. The im- continued 1965, petitioner was rescinded 21, Under sentence. service his prisoned 1 provisions 192, (MCLA of PA No 1968, 28.2308]), Ann 1971 Cum Supp § 791.238 [Stat accumulated 3 years, found to have petitioner was is, period 6 3 “dead time”, months and days 8, (February the date of Illinois arrest until the date his return to the 1966) physical 11, 1969). authorities custody Michigan (August totaling “dead time” of accumulated a result As petitioner and eight days, ten months seven years, to ten sen- year the two serving still Browning is of Detroit on in Recorder’s Court imposed tence 1958. August 22, challenged Mr. Browning
On August 18, 1969, persona, by propria filing, “dead time” deductions corpus Jackson a writ of habeas petition Falahee Charles J. Court. The Honorable Circuit denied of Appeals The Court denied the petition. uncoun- subsequent “for merit” petitioner’s lack of it treating Corpus,” seled for Habeas “Complaint 385 Mich op the Court superintending control complaint for writ of “a granted leave to We of mandamus.” in the nature appeal. Mich 807. unprecedented present for facts
The above-stated interpretation Court the our construction recently interrelationship amended between the Compact. and the statute7 time adopted in 1935. Compact was The quite time some in existence it had been Thus, relating to legislature the statute revised when the presumption arises As such, time” in 1968. “dead adoption legislature of both its aware that the People “dead time”. when it redefined and content Buckley (1942), legis presumption that the also obtains same real statute, time amended the dead when it lature, Michigan, re states, had unlike most ized that *7 sentencing of concur in favor nounced consecutive grounds sentencing “that allow so to rent the sentences] [consecutive render the second would subject uncertain and indefinite ” contingencies.’ In re ‘undefined and uncertain Carey In 380. See re also, 372 Mich (1964), Lamphere Bloom In re 597; Mich 53 (1886), (1884), In Mich re Allison Mich 61 105; (1948), pro policy qualified by while the this is Moreover, sentencing specific viso that consecutive under stat utory supra, permissible (Carey, authorization part legislature at recent actions on the 380), respect itself with to the dead time statute reflect 7 appointed orally argued Petitioner’s counsel 1968 amend- that (MCLA Supp 28.2308]) ment Ann 1971 Cum [Stat inapplicable ease, though to this even time” sus- the second “dead pension subsequent peti- computed revision, 1968 to the because year expired prior tioner’s 10 maximum sentence 1968 revision. necessary It is not have to consider this contention because we practical change concluded that the 1968 in the revision effected no meaning of “dead time.” See text. 187 v. Opinion op the Court the part a clear intent on of that body also favor concurrent sentences.
Prior to the 1953 revision of dead time statute therein language contained specifically provided a parole violator “shall serve the second sen- tence after the first [only] sentence is served or annulled.”8 That deleted in language was 1953 revision the dead time statute was likewise 1968 omitted revision. The deletion of such in the last two language statutory conso- revisions, with prior nant our Court’s construction, reflects and confirms the intent that a legislative parole violator should serve his sentences concurrently. present statute continues to effect this legis
lative intent.
some
Although
relat
language
to termination
of “dead
ing
time”
be
appears
new,
substantive intent and design remain and
are
in accord
our decisional
interpretations.
Before the latest
revision the pertinent
statute
provided
event
that,
“the
violation,
time from the date of
parolee’s]
his [the
declared
delinquency to the date of his arrest
shall not be
counted as
any part
portion
the time to be
served.” Our decisions
construing
language
made it clear that “date of arrest” would properly
he read to include “date of availability to the Mich
In re Holton
igan prison authorities.”
(1943),
Mich 534; In re Davis
Mich 154; In re
(1945),
Ginivalli
In
re Colin (1953),
(1953), 336
101;
In this context we a must, as matter of first now impression, determine the meaning of “date of 8 CL 1948, (Stat Ann 1951 Cum Supp 28.2176). op the Court any penal availability for return to institution his commission.” control the under differing question the circum- parolee arises because The the in-state out-state between stances disparate under the same in results treatment prisoner paroled A within the Mich- time statute. jurisdiction subsequently igan who violates his his upon immediately for return available of a violation warrant. arrest and issuance purposes, practical of an all the arrest in-state For parolee In Holton, re his dead time. terminates prisoner paroled supra. other out- hand, On the Compact parole by who state under the violates committing against foreign sovereign, an offense time” he is de- his “dead end until does not have foreign sovereign by for return clared available Michigan.9 foreign sovereign, under the required Compact, return terms is not imposed parolee by until that out-state the sentence present sovereign case, has satisfied. been As complete begin not his the out-state violator could prison until term he finished jurisdiction foreign in the handed over to and was authorities. suspension sen- practice, of the In sovereign’s foreign term service of the tence until imposes effectually consecutive imprisonment of sentences. One the other until not commence does expired. has operate the “dead manner, in this
Construed
requirement
not
violates the
time” statute
express
upon
based
must be
sentences
consecutive
supra,
380),
statutory provisions (Carey,
at
but
fact-finding
Although
denials below have' restricted
the writ
correctly
petitioner
has
stated the
case,
apprised that
we are
memorandum
disparate
computation
of “dead time”
current
Department
of Corrections which
prepared
the Director
appended
opinion.
appendix and
to this
people’s
appears
*9
v. 189
Opinion op the Court
invidiously
parolee
the out-state
also
sub-classifies
solely upon
geography. The
the basis of
beneficent
Compact
purposes
and rehabilitative
do not
require
discrimination and the dead time
stat
strictly
ute so
construed would constitute an un
equal protec
reasonable classification violative of
guarantees.
Employment Security
Fox
tion
Com
(1967),
mission
We time statute an unreasonable and strained construction. Rather, we believe that the dead time statute must be read pari Compact with materia to effect con- approved stitutionally legisla- and well-established against tive intent consecutive sentences, clearly pro- expressed contrary abides absent some vision. To this we availability” end, and so construe hold that phrase “date of means actual or constructive for return to the penal system. parolee, irrespective The arrest of a coupled of the location of arrest, issuance good of a violation warrant and faith effort parolee to retake the constitutes constructive availability. petitioner constructively
We conclude fully penal available for return and has satisfied obligation Appeals to this state. Court trial court are reversed. The case is remanded to prompt entry Jackson Circuit Court anof granting order discharging petitioner. the writ discharge may temporarily postponed Petitioner’s be pending notification to the Illinois authorities, given period shall who be reasonable which to they take regarding such action as deem advisable petitioner. Mich op the Court T. G. Williams, Swainson Kavanagh, Adams, M. C. J. with T. J.J., concurred Kavanagh,
APPENDIX MICHIGAN STATE OF Department of Corrections Building Mason Stevens T. Lansing, Harrison, Director Gus
January 27, 1969 MEMORANDUM. DIRECTOR’S OFFICE Deputy Heads, Parole Directors, To: Institution and Record Clerks
Board, Computation Parole Re: of “Dead Time” in Viola-
tion Cases. Par- Acts 1968 amended the Act 192 of Public of provide time the date of ole statute to from parolee’s if date declared violation any part availability or or use for return not be counted as portion served sentence, of time to be on the paroled. statutory which The from sentences, light upon “availability” new the word casts Henceforth, dead time” and its determination. “dead respect parole will be com- time with violators puted as follows: alleged arrested date which an violator is on by any probation of- officer, peace charges of technical viola- ficer, or officeron charges, technical new or both tion, criminal charges will considered
violation and criminal be except provided availability, the date of as par- Item from 4, service on the sentence running date. Dead oled will resume of that time will the time from the date of violation be to the date arrest. alleged
2. If criminal an held on new violator is charges, regardless are there whether or not v. Opinion op the Court charges, brought technical trial also new criminal on the charges acquitted, charges or the prossed, dismissed, are time or nolle dead will he the time from the date of violation to the date of arrest. charges
3. If there is a conviction on the new placed probation, violator from time will he the time the date viola- tion to the date of the arrest. disposition charges
4. If of the new criminal to a results jail in a penal state a federal sentence or penal jail or a institution, institution state, in another the date will he lawfully the date on which the violator is released the new time confinement on sentence. The from the date of to the date of such will release he declared dead time. charges disposition
5. If of the criminal results *11 a the confinement in an sentence to institution under
jurisdiction Corrections Com- will mission, the date time be the time from violation to the date of arrest. alleged 6. If an in violator is held local confinement pending charges, trial on new criminal the Parole may parole period, appears Board extend the if it original parole period may expire that the fixed disposition before final is made on the crim- new charges. inal alleged
7. If the violator is arrested outside the Michigan, availability State the date of will he holding juris- the date on which in authorities alleged diction declare the to be violator available Michigan. for return to time from the date of violation to the date of declared will he considered dead time. equity, policy
In the interest of will be retro- actively applied persons serving now parole if for from sen- dead time violation of being computed any tence served was under other [July- Black, by J. Dissenting Opinion currently persons apply will also This formula. violation of for forfeited time have who under current sentence. on the paroles prior retroactively, applied be this policy Since cases which be given priority is important it consideration for parole eligible would become restoration. dead time discharge admin- by be made will of dead time Restoration memoradum. with this in accordance order istrative taken should action is restoration in which Cases having manner as in some or identified stamped be and date violation on, From this amended. been custody in Board as the Parole will be set by dates past. the Attached is be reviewed. cases to listing
Sincerely, DEPARTMENT OF CORRECTIONS Harrison Gus /s/ Director Harrison, Gus GH:jm ap- Before another us is (dissenting).
Black, legal relief from the for peal a veteran convict by him. committed effect successive felonies larceny conviction for in from Starting succes- thence to proceeding the person, Georgia for armed robbery sive convictions Mich- initial then in Illinois following he in our state to further incarceration objects igan, He wants credit, for violation of that parole. to serv- Illinois, time served Georgia applied ice he committed yet owes crimes *12 Michigan. that the upon This he allegation asks legislature of our state intended and now intends has that the service of a sentence or imposed sentences by another or several other constitutes a of part states the service of one or more imposed sentences under the of laws our state. v. Mich. Dissenting Opinion by Black,
I without have stated the contention Let verbiage. read and stand, may it so that legislators compre- hend Mr. declaration of what is Browning’s said to have been in their minds when voted enactment they of the statutes mentioned below.
Twenty-four the years ago controlling principle issue came before the today’s then Gen- Attorney eral of the upon request of Director of Michigan, Corrections:
“The director
corrections has
the
requested
general
question
the
opinion
attorney
upon
when a
for a
committed
an
felony
by
sentence
es-
felon while at
commences to
large
run, and
caped
whether it runs
remainder of
concurrently
by
prison
the sentence
breach.”
interrupted
for the
assistant
at
Writing
Attorney General,
Peter E. Bradt
Car
torney general
Justice
quoted
dozo’s
opinion,
People
Ingber
Court,
“The
holds that a
breach
general
and that
in-
the service
such
interrupts
sentence,
of a second
terruption
during
continues
service
for a
while at large
sentence
crime committed
fol-
the fact
despite
that
lowing
prison breach,
prison
is served in
second sentence
the same
made.
under
original
which
Service
escape
until after
completion
sentence is not resumed
for the crime committed
imposed
large.”
convict
at
unlawfully
the effect of a
I
between
no difference
perceive
and an effort
felony,
in another
escape ending
prison
results
the same
rehabilitative
I
from the
do
perceive
criminal acts. Nor
worse
has intended
the legislature
aforesaid
statutes
*
28, 1947).—Reporter.
1947-1948,
(May
OAG,
p
No
*13
Then, having 5, draft No. (tentative Model Code Penal Horen- Sifers that “Mich- statement 126) support p not alone in credit for time igan granting free of violations”, which is served on I agree: concludes, General Attorney *14 credit for time “Hence, granting petitioner which is reflects on free of violations served and a com- and letter of statutes spirit states.” practice mon of sister I affirm. would
T. E. Black, J., Brennan, concurred with v. HOREN
SIFERS Court Long-Arm Statute. Courts —Jurisdiction Over Nonresidents — 1. attempt long-arm represents an on the statute poten- Michigan legislature expand to its full part personal jurisdiction of courts over non- tial limited 600.705). (MCLA residents § [1-9,11] 20 [12] [3] [10] 42 Am Construction and Construction predicating in predicating the state. eign eign corporations 20 Am 7 Am Jur Am Jur ALR3d Jur, corporations Jur Am Process § References 532. 2d, 2d, 2d, Jur ALR3d Attorneys at Law Attorneys Courts § personam jurisdiction personam 2d, application application on 78. Courts the commission 551. making for Points 146. at Law jurisdiction 121 et state state §§ performing seq. in Headnotes 8-11. statutes of a tort statutes or rules over over nonresidents or nonresidents a contract or rules of within the state. or within court court for- for-