Dеfendant pleaded guilty of delivering less than fifty grams of cocaine, MCL 333.7401(2)(a)(iv); MSA 14.15(7401X2) (a)(iv), which was his second conviction under the controlled substances act, MCL 333.7413(2); MSA 14.15(7413) (2). The trial court imposed a sentence of three to forty years’ imprisonment. Defendant appeаls as of right arguing that he is entitled to resentencing because the trial court mistakenly believed that an enhanced sentencе under MCL 333.7413(2); MSA 14.15(7413)(2) was mandatory rather than discretionary. We remand for resentencing.
This case arose when defendant sold cocаine to a police informant in June 1992. At the time of this offense, defendant was on probation for a prior conviction of аttempted delivery of cocaine.
The arraignment was held on July 14, 1992, and defendant pleaded guilty. Before accepting thе plea, the trial court advised defendant:
In your case the charge is delivery less than 50 grams of a mixture containing cocaine as a second offense. That carries not less than 2 nor more than 40 years in state prison. The actual minimum within those limits would be sеt by the Court, and *344 there’s a possibility of a fine in addition. Do you understand the charge? [Emphasis added.]
Defendant then indicated that he understood the charge.
At the sentencing hearing, the trial court first sentenced defendant to two to five years’ imprisonment for violating probation. For the delivery of cocaine conviction, the sentencing guidelines recommended a range of two to eight years. Defense counsel asked the trial court tо impose a two- to forty-year sentence for the delivery conviction. Defense counsel stated that this request was basеd on the belief that the sentence "has to be a mandatory 2-year to 40-year prison sentence.” The trial court then impоsed a consecutive sentence of three to forty years for the delivery convction.
A conviction of delivery of less than fifty grams of cocaine is punishable by imprisonment "for not less than 1 year nor more than 20 years, ... or . . . probation for life.” MCL 333.7401(2)(a)(iv); MSA 14.15(7401)(2)(a)(iv). As a second-offender of the controlled substances act, defendant was subject to an enhanced sentence рursuant to MCL 333.7413(2); MSA 14.15(7413X2), which provides:
Except as otherwise provided in subsections (1) and (3), an individual convicted of a second or subsequent offense under this article may be imprisoned for a tеrm not more than twice the term otherwise authorized or fined an amount not more than twice that otherwise authorized, or both. [Emрhasis added.]
Section 7413 does not create a new offense. It merely authorizes the trial court to enhance a sentеnce otherwise authorized under the controlled substances act.
People v Eason,
435 Mich
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228, 246;
Defendant asserts that the trial court had the mistaken imprеssion that § 7413(2) mandated an enhancement of the one- to twenty-year sentence to a two- to forty-year sentence. Dеfendant argues that this belief was erroneous because the enhancement was discretionary, not mandatory. We agree.
Subsection 2 of § 7413 employs the term "may.” Because "may” is a permissive term, we construe enhancement under subsection 2 as being discretionary rather than mandatory. Cf.
People v Bewersdorf,
Nonetheless, this Court in
People v Scott,
The Legislature has decided to punish repeat drug offenders by doubling the minimum sentence otherwise authorized. MCL 333.7413(2); MSA 14.15(7413X2). In this case, the mandatory minimum sentеnce is 2 to 40 years in prison for second-offenders. [Id.]
This statement incorrectly suggests that an en
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hancement of punishment against a second-offender under § 7413(2) is mandatory. Hоwever, the question whether enhancement is mandatory or discretionary was neither considered nor essential to the determination of
Scott.
Therefore, this statement is dictum and it does not establish a rule of law concerning enhancement that is binding precеdent.
People v Doyle,
In this case, the trial court’s comments at the arraignment indicated that it mistakenly believed an enhanced sentence undеr § 7413(2) was mandatory rather than discretionary. This mistaken belief was repeated by defense counsel at sentencing. Prior panels of this Court have held that a defendant is entitled to resentencing where a sentencing court fails to exercise its discretion because of a mistaken belief in the law.
People v Ash,
The prosecution cоntends that even if the trial court mistakenly believed that the mandatory minimum sentence was two years instead of one year, such a belief did not affect the court’s sentencing decision because the court had decided to exceed the mandatоry minimum sentence by imposing a three-year minimum sentence. This argument suggests that the trial court would have exceeded a mandatory minimum sentence of one *347 year in the same way it exceeded the enhanced mandatory minimum sentence of two years. Wе are unable to accept the assertion that the trial court’s mistaken belief did not affect the sentence. Indeed, it is impossible to determine whether the trial court decided to enhance the sentence solely because of a mistakеn belief that enhancement was mandatory. Further, we cannot tell whether the trial court would have exceeded the onе-year mandatory minimum sentence in the same manner it exceeded the enhanced two-year mandatory minimum sentence.
Because the trial court indicated that it mistakenly believed enhancement was mandatory, not discretionary, we remand this cаse to the trial court for resentencing. See
People v Turski,
We remand for resentencing in accordance with this opinion. We do not retain jurisdiction.