454 N.W.2d 121 | Mich. Ct. App. | 1989
PEOPLE
v.
POOL
Michigan Court of Appeals.
Before: MAHER, P.J., and MARILYN KELLY and H.E. DEMING,[*] JJ.
PER CURIAM.
Defendant pled guilty to a reduced charge of larceny from a person, MCL 750.357; MSA 28.589. In exchange for the plea, the prosecutor dismissed the original unarmed robbery charge, MCL 750.530; MSA 28.798. The parties agreed to a sentence of three to ten years in prison.
The trial judge sentenced defendant to a prison term of 1 1/2 to 10 years. He noted that defendant's record was not that bad and that he had a good relationship with his family. The prosecutor did not object to the sentence. Neither party raised the subject of the sentence agreement.
About a month later, the prosecutor moved to vacate the sentence. He argued that it was a violation of the sentence agreement. The judge acknowledged that he had made a mistake. He vacated the original sentence and resentenced defendant to three to ten years. He denied defendant's subsequent motion to vacate the second sentence.
On appeal defendant argues that the trial court did not have authority to resentence him. We agree.
A trial court's authority to resentence a defendant is limited. It depends on whether the previously imposed sentence is invalid. People v Whalen, 412 Mich. 166, 169; 312 NW2d 638 (1981). We are unable to find any authority which holds that a sentence which does not follow the sentence *193 agreement is invalid. Even where there is a sentence agreement, the trial court is not bound by it and must still exercise discretion when imposing sentence. People v Killebrew, 416 Mich. 189; 330 NW2d 834 (1982). Since defendant's original sentence was valid, the trial court did not have authority to resentence him.
Accordingly, we vacate defendant's sentence and remand for reinstatement of his original sentence of 1 1/2 to 10 years in prison.
NOTES
[*] Former circuit judge, sitting on the Court of Appeals by assignment.
