*1 App 740 v CORLIN PEOPLE 1979, Rapids. at Grand November Submitted No. 78-5282. Docket 4, 1980. Decided March delivery charged of a counts of with two Thomas D. Corlin Subsequently, con- the defendant was substance. controlled delivery victed, guilty, plea of one count on his Cook, Court, substance, George R. Kent Circuit controlled County in the Kent to 12 months was sentenced The defendant presentence apparent immediately became Jail. It relied, erroneously sentencing judge report, upon which the charge to a had the defendant stated that charge of rather than a possession substance of a controlled objec- the defendant’s delivery substance. Over of a controlled tion, to a of 3 to the defendant term resentenced the trial court delivery The defendant substance. of a controlled appeals. Held: sentence, set imposes it cannot trial court Once a impose How- and different one. a new sentence and aside that ever, accurate infor- be based on a sentence must to be was based defendant’s sentence case the mation. In the instant in the clearly contained information erroneous and the trial was invalid report. first sentence The defendant’s resentencing was a defendant. This court acted was no There not a double sentence. in the correction punishment. double Affirmed. original J., sen- that the He would hold Beasley, dissented. prosecutor defense and the since both
tence was valid sentenc- judge’s fact he was attorney attention to the called the aside He would set ing substance. original of 12 and reinstate the second sentence county jail. in the months in Headnotes for Points References 2d, Law 569. Am Jur Criminal § [1] [2, 2d, Criminal Law §§ 21 Am Jur 3] People v Corlin op Opinion the Court op Opinion the Court — Setting — 1. Criminal Law Sentences Aside Valid- Sentence op ity Sentence. *2 sentencing impose A cannot set a aside valid sentence and newa and different one once a valid sentence has been im- however, posed; to be a sentence must be based on accurate information. Guilty — — — 2. Criminal Law Plea Sentences Sentence for Wrong Offense. upon A sentence based an offense other than the offense to which plea guilty a a defendant entered of is invalid and after error, discovery authority the of the trial court has to plea sentence the defendant the offense to which the was entered. by Beasley, J. — Guilty Validity — 3. Criminal Law Plea of Sentences of Sentence. imposed by judge judge A sentence trial a was valid and the trial authority impose was without to the rescind sentence and where, although presentence new and different sentence the report indicated the conviction was for an other offense plea than the one to which the defendant had entered a judge guilty, sentencing, by at was informed both attorney, prosecutor and the defense of the mistake and of the proper offense which the defendant to be sentenced and judge proceeded to then sentence the defendant. Kelley, Attorney General, Frank Robert A. Derengoski, Sawyer, General, Solicitor H. David Prosecuting Attorney, Irons, and Carol S. Assist- Prosecuting Attorney, people. ant for the appeal. Harrison, Walter L. for defendant on Beasley P.J., Before: V. J. Brennan, and and G. E. JJ. Bowles,* originally
J. V. P.J. Defendant was Brennan, charged with two counts of pentobarbital methaqualone. substance, to-wit: * judge, sitting by assignment Circuit Appeals Court of pursuant 1963, 6, to Const art 23 as amended in § App Opinion op the Court August 1978, to one count 31, he On delivery 335.341(l)(b); pentobarbital, MSA MCL Judge 18.1070(41)(l)(b). 13, 1978, Cook On October in Kent 12 months to defendant sentenced County thereupon, Immediately it became Jail. report, upon apparent which erroneously Judge that defen- relied, stated Cook delivery, possession, pled and that not dant had imposed could be sentence which the maximum thereupon adjourned Judge years. Cook two proceedings to establish in order one week the exactly bond was. Defendant’s the conviction
what County to Kent he was remanded was revoked Jail. was returned defendant
On October previous Acknowledging that his court. an error contained defendant was based *3 objection Judge report, Cook, over 3 counsel, the defendant to resentenced
of defense crediting pentobarbital, years 7 to him previously days The crime served. the 2 with originally erro- and was for which defendant neously sentence of a maximum carried sentenced 18.1070(41)(4)(b). 335.341(4)(b); years. MSA MCL 2 pled guilty carries a defendant The crime to which 335.341(l)(b); years. 7 MCL maximum sentence 18.1070(41)(l)(b). MSA upon People
Relying
577; 20
Fox, 312 Mich
v
(1945),
argues
correctly
732
defendant
NW2d
imposes
it
the trial court
once
impose a new
and
aside that sentence
cannot set
Meservey,
People
76 Mich
v
one. See
and different
223, 226;
(1889),
People Kelley,
v
1133
and
42 NW
(1890).
To be
320, 321; 44
615
Mich
NW
79
on accurate
however,
be based
the sentence must
443;
Tucker, 404 US
United States v
information.
(1972), People v
L Ed 2d 592
589; 30
92 S Ct
People
743
v Coelin
Opinion of the Court
Malkowski,
244, 249;
385 Mich
Defendant also in contravention of *4 Pearce, North Carolina v US 89 S Ct (1969), 2072; 23 L Ed 2d 656 he has been twice punished disagree. same offense. The We sentence of 3 to 7 is a correction of the first Pardee, not a double In re sentence. supra, at 18. by Beasley, J.
Affirmed. Bowles, J., concurred.
E.G. I (dissenting). Beasley, dissent. respectfully sentencing as follows: The [Prosecuting Attorney]: May it "MR. HOEKSTRA Court, number this is criminal case please the Michigan Thomas the State of David of represented by attorney, his Mr. Corlin is here Corlin. purposes is here for Seys, and Wade the substance. charge here, Honor; your I’ve may some confusion "There be pre-sentence indicates that informed that been I, that charge possession yes, and this is a case handled, Seys agree and I think Mr. would myself, least, agreement plead to plea, or the at was to a the delivery charge. That’s correct. "MR. SEYS counsel]: [Defense Seys? Mr. "THE COURT: report, your pre-sentence "MR. I have read the SEYS: Honor, complete except I find it for that one exception, and I have no further comment. Corlin, anything you "THE Mr. do have COURT: imposed?
say before sentence is "THE DEFENDANT: No. judgment
"THE It or of this COURT: is you custody Court that County be remanded to the of the Kent months, period days two Jail for with served, previously 13, credit for time that sentence to com- mence October judgment Court
"This is a final sentence or of this you appeal Appeals can to the Court of as a matter right days, Clerk is now within the next 60 and the handing you showing you perfect take or a form how to appeal, you attorney that it, and if cannot afford an to do provide no cost or you will one for at added.) expense yourself.” (Emphasis I the trial imposed would hold *5 People v Corlin by Beasley, upon attorneys sentence defendant. Both called judge’s the tencing attention to the fact he was sen- substance, after which he described his sentence as a ñnal sen- subject appeal. only tence, It after thoughts. that the trial court had second Unlike v this sentence is not Johnson,1 based an offense to which defendant had not pled guilty. Rather, I would find this case con by People trolled v Robert Jackson2 and Fox.3
I would vote to set aside the sentence subse-
quently imposed and to reinstate the initial sen-
county jail.
tence of 12 months in the
(1975).
371;
App
60 Mich