People v. Stewart

134 Mich. App. 475 | Mich. Ct. App. | 1984

Lead Opinion

Allen, J.

We agree with Judge Burns that the sentence imposed should run consecutively with defendant’s earlier sentence, but disagree that, because the sentence was consecutive, no credit should be given for the 190 days defendant spent in the county jail awaiting sentencing.

We don’t agree that the granting of the presentence credit, under proper conditions, will destroy the validity of Michigan’s consecutive sentencing law. Our courts have consistently granted credit where the time spent in confinement awaiting trial and prior to the imposition of sentence "bear[s] an intimate and substantial relationship to the crime for which such person is subsequently convicted”. People v Groeneveld, 54 Mich App 424, 427-428; 221 NW2d 254 (1974), lv den 393 Mich 814 (1975); People v Face, 88 Mich App 435, 439; 276 NW2d 916 (1979); People v Tilliard, 98 Mich App 17, 20-21; 296 NW2d 180 (1980); People v Donaldson, 103 Mich App 42, 50; 302 NW2d 592 (1981). Here, defendant was not serving time in jail on his prior conviction for larceny. He was on extended furlough when he committed the second offense. Upon arraignment, bond was set at $5,000 but defendant was unable to post bond in that sum. It was defendant’s inability to post bond on the second offense which caused his incarceration. We can think of no closer or more intimate relationship between the offense charged and the fact of incarceration.

Michigan’s presentence credit statute requires the giving of credit for time served prior to sentence because of lack of bond. MCL 769.11b; MSA 28.1083(2). We don’t believe that that statute is or should be automatically disregarded and held for naught merely because the second sentence is consecutive rather than concurrent. To the extent that People v Shirley Johnson, 96 Mich App 84, 88; 292 NW2d 489 (1980), holds to the contrary, we disagree with that holding.

We therefore amend defendant’s sentence to credit him with the 190 days served prior to sentencing. GCR 1963, 820.1(7).

Affirmed as modified.

D. E. Holbrook, Jr., P.J., concurred.

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Dissenting Opinion

R. B. Burns, J.

(dissenting). Defendant was charged with larceny in a building, MCL 750.360; MSA 28.592. At the time of the offense, defendant was on furlough from an earlier conviction of larceny in a building, for which he had been sentenced to imprisonment of 4-6 years. After pleading guilty to the charged offense, defendant was sentenced to a prison term of 2-4 years, which was to run consecutively with his previous sentence. He received no credit for the time he spent in the Washtenaw County jail prior to sentencing on the second larceny offense because of an inability to post bond. He now appeals, arguing that he was entitled to presentence credit for the time he spent in the county jail prior to sentencing on the second conviction.

I would hold that since defendant was on furlough at the time of the offense, he was still under the care, custody, or supervision of the Department of Corrections within the meaning of the consecutive sentencing statue, MCL 768.7a; MSA 1030(1), and accordingly defendant was properly given a sentence which is to run consecutively with his earlier sentence. People v Lakin, 118 Mich App 471, 473-474; 325 NW2d 460 (1982). To give defendant credit for time served in the county jail awaiting sentencing would defeat the purpose of the consecutive sentence statute. See Brinson v Genessee Circuit Judge, 403 Mich 676, 685-687; 272 NW2d 513 (1978); People v Shirley Johnson, 96 Mich App 84; 292 NW2d 489 (1980).

I would affirm.