497 N.W.2d 571 | Mich. Ct. App. | 1993
PEOPLE
v.
LANKEY
Michigan Court of Appeals.
Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, John D. O'Hair, Prosecuting Attorney, Timothy A. Baughman, Chief of Research, Training, and Appeals, and Don W. Atkins, Assistant Prosecuting Attorney, for the people.
*188 Douglas Hamel, for the defendant on appeal.
Before: CORRIGAN, P.J., and MICHAEL J. KELLY and GRIFFIN, JJ.
AFTER REMAND
PER CURIAM.
Following a jury trial, defendant was convicted of five counts of first-degree criminal sexual conduct, MCL 750.520b(1)(a); MSA 28.788(2) (1)(a), involving his then six-year-old granddaughter. Defendant was sentenced to concurrent terms of two to ten years in prison. The minimum sentence recommended by the sentencing guidelines is between eight and ten years.
In our previous opinion, People v Lankey, unpublished opinion per curiam of the Court of Appeals, decided September 22, 1992 (Docket Nos. 126668, 154456), we affirmed defendant's convictions but remanded the case to the trial court for reconsideration of the sentences in light of People v Milbourn, 435 Mich. 630; 461 NW2d 1 (1990). On remand, the trial court ruled that Milbourn did not apply to sentences that are less than recommended by the guidelines. This ruling is erroneous and contrary to our remand instructions.
The prosecutor contends that defendant's sentences are disproportionately lenient given the gravity of the offense. We agree and accordingly vacate defendant's sentences and remand for resentencing. The resentencing shall occur before a different judge. People v Evans, 156 Mich. App. 68, 72-73; 401 NW2d 312 (1986). Also see People v Fisher (After Second Remand), 190 Mich. App. 598, 608-609; 476 NW2d 762 (1991), lv gtd 439 Mich. 1002 (1992). We do not retain jurisdiction.
Convictions affirmed, sentences vacated, and case remanded for resentencing.
