People v. Lamb
506 N.W.2d 7
Mich. Ct. App.
1993
Check Treatment
Griffin, J.

Defendant appeals as of right following a resentencing at which he was sentenced to six months to fifteen years in prison for a conviction of third-degree criminal sexual conduct, MCL 750.520d; MSA 28.788(4). We affirm.

On January 26, 1987, defendant pleaded guilty of one count of third-degree criminal sexual conduct stemming from an act of oral copulation involving a fifteen-year-old boy. On January 22, 1988, defendant was sentenced to five years’ probation, with the first year to be served in the Gene-see County jail. More than 2 V2 years later, on August 20, 1990, the prosecutor filed a motion for resentencing, claiming that defendant’s sentence of probation was invalid. Following a hearing, the trial court denied the motion.

The prosecutor then filed a complaint for superintending control with this Court. Upon review, we agreed with the prosecutor’s position that the sentence was invalid. Accordingly, on January 31, 1991, we issued an order vacating defendant’s sentence and remanding for resentencing. Just one day before the release of the order, however, the trial court signed an order discharging defendant from his probation.

On remand, on January 15, 1992, defendant was resentenced to six months to fifteen years in prison. On appeal, defendant raises a single issue for our review. Defendant contends that his absolute discharge from probation precludes resentencing even though the original sentence of probation *180 was invalid. After thorough review, we disagree with defendant’s argument.

To support his position, defendant solely relies on our decision in People v Gregorczyk, 178 Mich App 1; 443 NW2d 816 (1989). Gregorczyk involved a defendant who was given an invalid sentence and later granted an early discharge by the parole board. At issue was what effect the parole board’s discharge had on the trial court’s subsequent authority to impose a valid sentence. To resolve the issue, the majority in Gregorczyk looked to the Supreme Court’s decision in In re Eddinger, 236 Mich 668; 211 NW 54 (1926). There, the Supreme Court observed that an absolute discharge granted by the Governor operates as a "remission of the remaining portion of [a defendant’s] sentence.” Id. at 670. Seizing on this language, the majority in Gregorczyk held that the parole board’s actions, even though illegal, operated as a remission of whatever remained of the defendant’s initial invalid sentence. Gregorczyk, supra at 11-12. Accordingly, the majority determined that the defendant’s obligation to the state had ended and that he could not be compelled on resentencing to serve an additional sentence. Id. at 12.

After thorough review, we find Gregorczyk distinguishable from the present case. We also deem it appropriate to limit Gregorczyk to its facts. 1 Unlike Gregorczyk and Eddinger, the present case does not involve any executive commutation of defendant’s original sentence. As noted by the majority in Gregorczyk, Gregorczyk’s discharge by the parole board involved an exclusive exercise of executive powers. Gregorczyk, supra at 10. Fur *181 ther, the majority in Gregorczyk declined to assume that the defendant was released for any reason other than that he was determined by the parole board to be an appropriate candidate for discharge. In short, the concerns about separation of powers that compelled the result in Gregorczyk are simply not implicated in the case at bar. 2 What we have before us is a case where the trial court simply perpetuated its own error by terminating a sentence of probation that it had no authority to impose in the first place.

On the basis of the foregoing, we hold that the fact that the circuit court discharge defendant from probation did not preclude resentencing. The circuit court had the authority to correct the invalid sentence, MCR 6.429(A), and we affirm the sentence of six months to fifteen years in prison.

Affirmed._

Notes

1

We express no opinion regarding the correctness of the decision in Gregorczyk, supra. We note, however, that the viability of Gregorczyk appears questionable. See Michigan ex rel Oakland Co Prosecutor v Dep’t of Corrections, 199 Mich App 681; 503 NW2d 465 (1993).

2

Moreover, because defendant received credit for time served on the invalid sentence, the double jeopardy concerns expressed in Gregorczyk are likewise not implicated here. See Gregorczyk, supra at 9.