People v. Armentero
487 N.W.2d 813
Mich. Ct. App.
1992
Check Treatment
Weaver, P.J.

Following a conviction, an appeal, and a new trial, defendant was convicted of murder in the second degree, MCL 750.317; MSA 28.549. Defendant appealed his second conviction and sentence of 75 to 150 years to this Court. The conviction was affirmed, and the Court found that defendant’s sentence did not shock the judicial conscience. People v Armentero, 148 Mich App 120; 384 NW2d 98 (1986). Defendant’s application for leave to appeal to the Michigan Supreme Court was denied on July 29, 1986. People v Armentero, 425 Mich 883 (1986). On October 26, 1987, defendant’s petition for a writ of habeas corpus was denied by the United States District Court. The Sixth Circuit Court of Appeals affirmed the denial of the habeas petition on August 4, 1988, and the United States Supreme Court denied defendant’s petition for a writ of certiorari on December 5, 1988.

On August 29, 1989, defendant filed a delayed motion for resentencing in Detroit’s Recorder’s Court, on the basis of the decision of People v Moore, 432 Mich 311; 439 NW2d 689 (1989). After hearing arguments, the court ordered that defendant be resentenced, finding that Moore applied retroactively. The prosecution now appeals the trial court’s decision to this Court. We reverse.

The primary issue before us is whether the sentencing rules set out in Moore are to be applied retroactively. Moore itself does not state the extent to which it is to be applied retroactively.

*542Our Supreme Court has held that the factors to be used in determining if a law should be applied retroactively are: (1) the purpose of the new rule, (2) the general reliance on the old rule, and (3) the effect on the administration of justice. People v Hampton, 384 Mich 669, 674; 187 NW2d 404 (1971).

In another case dealing with the indeterminate sentencing act,1 the Supreme Court relied on the principles set out in Hampton to hold that the decision was 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 of 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 issues shall not be affected by the rule herein adopted.” People v Tanner, 387 Mich 683; 199 NW2d 202 (1972).

We find that the rule enunciated in Moore should be given the same limited retroactive effect.

Thus, because defendant’s case does not fall within these restrictions, Moore is not applicable to his sentence. We reverse the order allowing resentencing and order defendant’s previous sentence of 75 to 150 years reinstated.

Reversed._

Notes

In People v Tanner, 387 Mich 683; 199 NW2d 202 (1972), the Court held that any sentence that provides for a minimum exceeding two-thirds of the maximum is improper as failing to comply with the indeterminate sentencing act.