271 N.W.2d 275 | Mich. Ct. App. | 1978
PEOPLE
v.
JORDAN
Michigan Court of Appeals.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward R. Wilson, Principal Attorney, Appeals, and Nels Olson and Robert M. Morgan, Assistants Prosecuting Attorney, for the people.
William R. McFadden, for defendant on appeal.
Before: R.M. MAHER, P.J., and J.H. GILLIS and McGREGOR,[*] JJ.
J.H. GILLIS, J.
Defendant does not appeal from his July 11, 1977, plea-based conviction of attempted possession of heroin contrary to MCL 750.92, 335.341(4)(a); MSA 28.287, 18.1070(41)(4)(a), wherein he was sentenced to a prison term of 1 year, 11 months, to 2 years. He does, however, appeal from the sentence, alleging that he was denied his right of allocution prior to sentencing in conformity with GCR 1963, 785.8(2) and he further contends that the minimum prison sentence *461 of 1 year, 11 months, violates People v Tanner, 387 Mich 683; 199 NW2d 202 (1972).
There is ample support in the record for his first argument, and, therefore, we would remand the case for resentencing with the defendant having the right to advise the court of any circumstances he believes the court should consider in imposing sentence.
Inasmuch as the indeterminate sentence act (MCL 769.8; MSA 28.1080) only applies to one convicted of a crime for the first time, it does not apply to the instant case wherein the defendant had prior felony convictions. Defendant's sentence is therefore controlled by People v Banks, 73 Mich App 492; 252 NW2d 501 (1977). Accordingly, the trial court did not err in setting defendant's sentence at 1 year, 11 months to 2 years.
Remanded for proceedings consistent with this opinion.
McGREGOR, J., concurred.
R.M. MAHER, P.J. (concurring in part; dissenting in part).
An examination of the record indicates that the trial judge failed to comply substantially with GCR 1963, 785.8(2), 785.9. I agree, therefore, that this case should be remanded to the trial court for resentencing in conformance with these court rules. See People v Elijah Smith, 68 Mich App 551; 243 NW2d 681 (1976).
However, since defendant was a repeat offender and not an habitual offender, I believe that the indeterminate sentence act does apply to his situation and that his minimum prison sentence of 1 year and 11 months therefore violates People v Tanner, 387 Mich 683; 199 NW2d 202 (1972). See People v Redwine, 73 Mich App 83; 250 NW2d 550 (1976), People v Reginald Harris, 80 Mich App 228; *462 263 NW2d 40 (1977), and People v Reese, 83 Mich App 186; 268 NW2d 340 (1978).
Accordingly I would remand to the trial court for allocution and resentencing in accordance with People v Tanner, supra.
NOTES
[*] Former Court of Appeals judge, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.
