Lead Opinion
The pertinent facts are that the petitioner was sentenced in recorder’s court for the city of Detroit, October 22, 1957, to serve a term of 3 to 14 years and on November 19, 1957, wаs sentenced in the circuit court for Macomb county to serve a term of 3 to 15 years. At the time, he was under sentence of 5 years imposed in the United States district court for the eastern district of Michigan on October 18, 1957. He served his 5-year sentence in Federal сustody and was transferred to the department of corrections of Michigan Octobеr 17, 1962.
The attorney general sums up the problem admirably :
“The petitioner’s important claim is that he has not been credited on either his minimum or mаximum term with the period of time which he spent in the Federal prison. This course is not open to him on this habeas corpus, but would be a matter for deter-*380 ruination by the court if the petition were treated as one for mandamus instead of for habeas corpus. * # *
“The рroblem is one of deep concern to the department of corrections. While the sentences here involved antedate Illova [In re Illova,351 Mich 204 ] and were after Huber [In re Huber,334 Mich 100 ], many persons have since the publication of Illova been sentenced to serve a term which was stated to be concurrent with a Federal sentence, or have received sentences which, while they did not so state, bore a recommendation that thе sentences be considered t'o be concurrent with a Federal sentence. Other persons have been sentenced to serve terms which were consecutive or to be served after the time when the Federal sentence was completed. Still other persons have been sentenced without any suggestion as to how they should be servеd.”
We are thus faced with an anomalous situation. Insofar as 2 or more sentences under State law are concerned, we know, that in the absence of statutory authority, a sentence may not be imposed to commence at the completion оr expiration of another-sentence. In re Bloom,
In the Bloom, Lamphere, and Allison Cases, supra,. the refusal of consecutive sentencing, in the absence of statutory authority, was bottomed upon the fact that so to allow would render the second sentence-uncertain and indеfinite and subject to “undefined and uncertain contingencies.” In re Bloom, supra. Contrariwise, we have concluded in the Huber and
There seems little justification for this dual approach in the sentencing law, and the sooner we eliminate it the better. A defendant who is sentenced in а State court after receiving sentence in a Federal court is subject to the sаme “undefined and uncertain contingencies” about when State sentence begins, as he is in the case of 2 or more State sentences. The reason for the rule aptly аpplies in both types of cases. Therefore, we hold that where, a defendant has been sentenced in Federal court, and is subsquently sentenced in a State court or сourts, sentence may not be imposed to commence at the completion or expiration of Federal sentence, in the absence of statutory authority. Bloom, Lamphere and Allison, supra. To the extent that Huber and Illova, supra, express a contrary view, said cases are overruled.
Obviously, it has been more than 5 years since petitioner was sentenced in State courts fоr sentences bearing 3-year mínimums. The date of minimum expiration, by statute, determines when the parole board receives jurisdiction. CLS 1956, § 791.-'234, as amended by PA 1958, No 210 (Stat Ann 1961 ’Cum Supp § 28.2304). We find, thereforе, that petitioner should properly be within the jurisdiction of the parole board.
Petitiоner seeks habeas corpus, but habeas corpus will not lie because petitiоner has not served maximum sentence. In re Allison, supra. However on the implied suggestion of the attornеy general, we treat the petition as one for mandamus. We reach
Writ of mandamus will issue.
Dissenting Opinion
(dissenting). I am not persuaded that In re Huber,