*1 App 788 PEOPLE BELLAFANT Rapids.— at Grand 48816. November Submitted Docket No. 23, 1981. April Decided assaulting prison em- Benjamin L. Bellafant convicted Court, Quinnell, ployee, Marquette J. Defen- Edward Circuit appeals, alleging several errors. Held: dant after he had 1. Defendant’s conviction required good of the same earned time because to forfeit against assault, jeop- prohibition double not violate does ardy. prisoners upon prison prohibiting assaults 2. The statute employees clause of the Michi- not violate the gan Constitution. only apply 3. The statute does prison. clearly applies to other It upon prison employees as well. required be an in- was not at 4. presentencing is not a conference. Such conference process. exception decision with the concurred in the that error occurred when would hold hold conference. He would excluded from the that, on the record the defendant the absence defense between of his sentencing judge, should remanded counsel the case for
Opinion of the Court Jeopardy. 1. Assault and Double prison employee prisoner A who is convicted [1] [2] [3] [4] [5, 73 Am Jur 6] [No 73 Am [No.Reference], 21 Am Jur Reference], Jur 2d, 2d, References 2d, Statutes §§ Criminal 99.§ Law Points 146. §§ in Headnotes who, has been sentenced conviction required by prison has been officials to forfeit his thereby subjected jeopardy. time earned to double *2 Battery — — 2. Criminal Law Constitutional Law Assault and — Statutes. prohibiting by prisoners prison upon employ- The statute assaults does not of ees violate the (Const 1963, 4, §24; 750.197c; Constitution MCL MSA 28.394[3]). Appeal — — Judicial Construction. Appeals Legislature The Court of must the intent enforce of where the has made that intent known clear and aof statute. — 4. Assault and Statutes. prohibiting prisoners upon prison employ-
The statute applies merely to ees such (MCL prison 750.197c; to MSA 28.394[3]). Sentencing Presentencing — — 5. Criminal Law Conference. right prior A criminal who present to need have been presentencing conference because such a conference is not a stage proceedings. — Sentencing Presentencing 6. Criminal Law Conference. right A defendant has a to be preserve allocution; ence in to order his where defense counsel wishes to with a defendant should waive on the record his to the time the Kelley, Attorney General, Frank J. Robert Derengoski, Gary General, Solicitor L. Prosecuting Attorney (by Walker, Leonard J. Mali- Attorney Prosecuting nowski, Assistant General, Service), Attorneys Appellate people. for the Appellate Carter, Derrick A. Assistant State appeal. Defender, for defendant on Opinion P.J., M. Burns Mackenzie, Before: JJ. Bashara, appeals as Defendant Per Curiam. bench trial conviction
June employee. MCL August to a 31, 1979, was sentenced On imprisonment, years to four of nine months term consecutively one to be served this sentence serving assault. at the time of the argues his conviction vio- Defendant first jeopardy he had lates double required a result of time as forfeit earned panels of Court have same assault. Prior lacking in found it to be this issue and Comm, 86 Mich v Corrections merit. Pfefferle (1976), People Bachman, 366, 373; 272 *3 (1973), App lv den 392 682; 213 800 Mich NW2d 50 (1974). Mich 776 argument reject
Similarly, defendant’s we convicted violates which the statute under of the Constitu- the tion. Const 4, § 24. This 1963, Court Wingo, App argument People v 95 Mich in this (1980), 93 and found 105; 290 NW2d penal not embrace 197c of code "Section * ** object expressed [its] title”. in an that is contention have considered defendant’s We applies only to assaults assault statute the that are made prison. an persuaded by
However,
this
we are not
argument.
language
un-
The
of the statute
clear
legislative
ambiguously expresses
con-
intention
People Boyd,
trary
argument.
v
102
to defendant’s
(1980).
App
112;
Where
Mich
We do not find the in-chambers process requiring a crucial presence. defendant’s The record reveals that defendant was imposition Therefore,
to the
of sentence.
we find
People Briggs,
no
error.
v
94 Mich
727;
(1980), People Worden,
NW2d
v
91 Mich
(1979).
App 666; 284
(dissenting
part
in
and concur
ring
part).
agree
I
that defendant’s conviction of
prison employee contrary
to MCL
28.394(3)
should be affirmed. How
agree
ever, I
with defendant
that error occurred
when a
conference was held in judge
without him. See
McIntosh,
423;
ence such as the instant that defendant can- expected not be to be aware of all considerations that went into the determination expected adequately nor can he be refute Partial Concurrence may have arisen dur- information inaccurate ing the in-chambers conference. procedure a defen- to follow when
The better attorney wishes dant’s have defendant waive
the record his to the time that it is Because discussion case, in this and because no such was made was ever does not reflect record apprised what said at the in-chambers conference, I we must remand believe that