327 N.W.2d 534 | Mich. Ct. App. | 1982
PEOPLE
v.
CASANAS
Michigan Court of Appeals.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Robert L. Kaczmarek, Prosecuting Attorney, and Kay F. Pearson, Assistant Prosecuting Attorney, for the people.
State Appellate Defender (by Richard B. Ginsberg), for defendant on appeal.
Before: R.B. BURNS, P.J., and D.F. WALSH and P.J. MARUTIAK,[*] JJ.
PER CURIAM.
Defendant pled guilty to larceny over $100, MCL 750.356; MSA 28.588. She was sentenced to serve 1-1/2 to 5 years in prison.
At the time of sentencing, she denied three convictions listed on the presentence report. It is *616 also claimed that she was not represented by counsel for some other convictions.
The trial judge did not reply to such assertions.
When a defendant asserts such errors, the trial judge has three alternatives. First, he can hold an evidentiary hearing to determine whether or not the presentence report is inaccurate. Second, he can accept the defendant's unsworn statement that the information is false. Third, he can ignore the alleged misinformation in determining the sentence. People v Perez, 103 Mich. App. 636; 303 NW2d 49 (1981).
This case is reversed and remanded for resentencing before a different judge.
D.F. WALSH, J. (dissenting).
I must respectfully dissent. My review of the record persuades me that the trial judge considered only those convictions which were not denied by the defendant at the time of sentencing. Moreover, since the defendant failed to follow the procedure mandated by the Supreme Court in People v Moore, 391 Mich. 426, 440; 216 NW2d 770 (1974), remand for a Tucker hearing is not required.[1] I would affirm.
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment.
[1] United States v Tucker, 404 U.S. 443; 92 S. Ct. 589; 30 L. Ed. 2d 592 (1972).
