Docket 127599 | Mich. Ct. App. | Apr 20, 1992
PEOPLE
v.
WAGNER
Michigan Court of Appeals.
Frank J. Kelley, Attorney General, Gay Secor Hardy, Solicitor General, William D. Frey, Prosecuting Attorney, and Lawrence J. VanWasshenova, Assistant Prosecuting Attorney, for the people.
Goodman & Eklund-Easley (by Molly Eklund-Easley), for the defendant on appeal.
Before: DOCTOROFF, C.J., and MICHAEL J. KELLY and BRENNAN, JJ.
MICHAEL J. KELLY, J.
In 1987, defendant pleaded nolo contendere to a charge of breaking and entering *681 an unoccupied dwelling. MCL 750.110; MSA 28.305. Defendant was sentenced to five years' probation and 365 days in the county jail.
On September 5, 1989, defendant pleaded guilty of probation violation, admitting that he was convicted of certain misdemeanors and that he failed to report to the probation department. Sentencing was scheduled for November 17, 1989. Two days later, on September 7, 1989, defendant was arrested for unlawfully driving away an automobile, and another petition for probation violation was issued.
On September 25, 1989, defendant again pleaded guilty of probation violation. Defendant requested that he be permitted to participate in the special alternative incarceration program or "boot camp" program rather than be sentenced to prison. Sentencing was again scheduled for November 17, 1989.
On November 17, 1989, defendant was sentenced to 365 days in the county jail, with 310 days credit for time served, and ordered to remain in jail until there was an opening in the boot camp program. Shortly thereafter, defendant was accepted into the boot camp program.
On March 2, 1990, another petition for probation violation was issued against defendant, alleging that he voluntarily left the boot camp program before graduation. Subsequently, defendant was found guilty of violating his probation and sentenced to five to ten years' imprisonment.
Thereafter, defendant filed a motion for resentencing, claiming, among other things, that he should have received sentence credit for the time he spent in the boot camp program, that the sentencing guidelines should apply to probation violations, and that a sentencing information report should have been prepared for his probation *682 violation. The sentencing judge refused to give defendant sentence credit for the time spent in boot camp and rejected defendant's argument that the sentencing guidelines should apply to probation violations. Defendant appeals as of right.
Defendant first claims that the trial court erred in determining that he was not entitled to sentence credit for the time spent in boot camp.
Our Supreme Court recently held in People v Whiteside, 437 Mich. 188" court="Mich." date_filed="1991-04-29" href="https://app.midpage.ai/document/people-v-whiteside-2043021?utm_source=webapp" opinion_id="2043021">437 Mich 188; 468 NW2d 504 (1991), that an essential prerequisite to an award of sentence credit under the sentence credit statute, MCL 769.11b; MSA 28.1083(2), is a showing that there was presentence confinement of the defendant due to his inability to post bond. Because defendant's participation in the boot camp program was not due to his being denied or unable to furnish bond for the offense of which he was convicted, he is not entitled to sentence credit under the statute for the time he spent in the boot camp program. Whiteside, supra at 196.
Defendant also claims that the Double Jeopardy Clauses of the federal and state constitutions, US Const, Am V; Const 1963, art 1, § 15, mandate an award of sentence credit for the time he spent in the boot camp program.
While it is true that double jeopardy principles require an award of credit for time spent in jail as a condition of probation when the defendant is later sentenced to prison upon revocation of probation, People v Sturdivant, 412 Mich. 92" court="Mich." date_filed="1981-11-23" href="https://app.midpage.ai/document/people-v-sturdivant-1757484?utm_source=webapp" opinion_id="1757484">412 Mich 92; 312 NW2d 622 (1981), the Double Jeopardy Clauses do not mandate awards of sentence credit for all probationary confinements. Sentence credit under the Double Jeopardy Clauses is required only for confinements amounting to time spent "in jail" as that term is commonly used and understood. Whiteside, supra at 202. Further, the purpose of *683 the probationary confinement must be incarceration, rather than treatment and rehabilitation. Whiteside, supra at 202.
A review of the record in this matter reveals no information about the physical structure, the fences and bars, of the boot camp program, the restrictions placed on defendant during his participation in the program, or the trial court's intent in ordering defendant's participation in the program.
Because the record in this case is not sufficiently developed to permit a determination regarding whether defendant's participation in the boot camp program was the equivalent of a confinement in "jail," this matter must be remanded to the trial court for development of the record and for a determination by the trial court regarding whether defendant is entitled to sentence credit under Whiteside.
Defendant next argues that a sentencing court must use the sentencing guidelines prepared for the underlying offense when sentencing a defendant for a probation violation. We disagree. This Court has previously held that the sentencing guidelines are inapplicable to sentences imposed after a defendant is convicted of probation violation. People v Leske, 187 Mich. App. 153" court="Mich. Ct. App." date_filed="1991-01-22" href="https://app.midpage.ai/document/people-v-leske-1297858?utm_source=webapp" opinion_id="1297858">187 Mich App 153, 158; 466 NW2d 361 (1991).
Lastly, defendant argues that the five- to ten-year sentence imposed for violation of probation because of defendant's failure to successfully complete the boot camp program was an abuse of discretion that should shock the conscience of this Court.
Because we have already ordered this matter remanded to the trial court for a determination regarding whether defendant is entitled to sentence credit, and because at the time of sentencing *684 the trial court did not have the benefit of our Supreme Court's decision in People v Milbourn, 435 Mich 630; 461 NW2d 1 (1990), we also remand for resentencing pursuant to the principle of proportionality announced in Milbourn.
Conviction affirmed but case remanded for proceedings consistent with this opinion.
BRENNAN, J., concurred.
DOCTOROFF, C.J., concurred in the result only.