252 N.W.2d 501 | Mich. Ct. App. | 1977
PEOPLE
v.
BANKS
Michigan Court of Appeals.
*493 Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Eugene C. Penzien, Prosecuting Attorney, and Laurence Ramer, Assistant Prosecuting Attorney, for the people.
Robert M. Donahue, for defendant.
Before: J.H. GILLIS, P.J., and M.F. CAVANAGH and D.E. HOLBROOK, JR., JJ.
D.E. HOLBROOK, JR., J.
Defendant was convicted by a jury of breaking and entering, MCLA 750.110; MSA 28.305, and larceny in a dwelling house, MCLA 750.360; MSA 28.592. He was subsequently sentenced to 3 to 15 years imprisonment on the breaking and entering charge and 3 to 4 years imprisonment on the larceny in a dwelling house charge. At the time of sentencing the trial judge noted that the defendant had previously been convicted of another crime for which he received a sentence of 1-1/2 to 15 years imprisonment. Defendant appeals as of right raising two issues, only one of which warrants extended discussion.
Initially defendant contends that the trial court erred in giving an aiding and abetting instruction without sufficient evidence to justify same. This issue may be summarily dismissed. See People v Mann, 395 Mich. 472; 236 NW2d 509 (1975). Lastly, defendant contends that the court's sentence of 3 to 4 years for the larceny in a dwelling house conviction violates the indeterminate sentencing *494 act, MCLA 769.8; MSA 28.1080, and the holding by the Supreme Court in People v Tanner, 387 Mich. 683, 690; 199 NW2d 202 (1972).
In Tanner, the Court at page 690 stated:
"Convinced as we are, that a sentence with too short an interval between minimum and maximum is not indeterminate, we hold that any sentence which provides for a minimum exceeding two-thirds of the maximum is improper as failing to comply with the indeterminate sentence act." (Emphasis supplied.)
It is apparent from the foregoing that the Supreme Court limited its holding that a minimum sentence exceeding two-thirds of the maximum is improper applies only to cases to which the indeterminate sentence act applies.
The indeterminate sentence act, MCLA 769.8; MSA 28.1080, reads in part as follows:
"When any person shall hereafter be convicted for the first time of crime committed after this act takes effect." (Emphasis supplied.)
Since defendant's conviction for larceny in a dwelling house was defendant's third conviction the court was not bound by the indeterminate sentence act and was free to sentence defendant as its discretion dictated. Absent an abuse of discretion, the trial court's decision will not be disturbed. We find no abuse of discretion and defendant's sentence shall stand.
Affirmed.
J.H. GILLIS, P.J., concurred.
M.F. CAVANAGH, J. (concurring in part, dissenting in part).
I concur in the majority's affirmance of the defendant's conviction. However, for the *495 reasons stated in People v Redwine, 73 Mich. App. 83; 250 NW2d 550 (1976), I would hold that the sentence imposed violates People v Tanner, 387 Mich. 683; 199 NW2d 202 (1972), and would remand for resentencing.
