417 N.W.2d 540 (Mich.App. 1987), 98521, People v. Fernandez

Docket Nº:Docket No. 98521.
Citation:417 N.W.2d 540, 164 Mich.App. 485
Opinion Judge:PER CURIAM.
Party Name:PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Stephen Rafel FERNANDEZ, Defendant-Appellant.
Attorney:James R. Neuhard, State Appellate Defender by Susan Meinberg Thomas, Detroit, for defendant-appellant.
Judge Panel:Before BEASLEY, P.J., and J.H. GILLIS and GRIBBS, JJ.
Case Date:November 16, 1987
Court:Court of Appeals of Michigan
 
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417 N.W.2d 540 (Mich.App. 1987)

164 Mich.App. 485

PEOPLE of the State of Michigan, Plaintiff-Appellee,

v.

Stephen Rafel FERNANDEZ, Defendant-Appellant.

Docket No. 98521.

Court of Appeals of Michigan.

November 16, 1987

Submitted Sept. 16, 1987.

Released for Publication Jan. 21, 1988.

[164 Mich.App. 486] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., John D. O'Hair, Pros. Atty., Timothy A. Baughman, Chief of the Crim. Div., Research, Training and Appeals, and Thomas M. Chambers, Detroit, for People.

James R. Neuhard, State Appellate Defender by Susan Meinberg Thomas, Detroit, for defendant-appellant.

Before BEASLEY, P.J., and J.H. GILLIS and GRIBBS, JJ.

PER CURIAM.

On appeal, the Supreme Court has reversed the decision of this Court 1 and held that a mandatory life sentence is required on [164 Mich.App. 487] conviction of conspiracy to commit first-degree murder under M.C.L. Sec. 750.157a; M.S.A. Sec. 28.354(1). The Supreme Court further provided as follows:

"We remand the case to the Court of Appeals for briefing and decision on whether a person sentenced to life imprisonment for conspiracy to commit first-degree murder is eligible for parole consideration under MCL 791.234(4); MSA 28.2304(4) and, if so, the proper retroactive effect of such a decision." 2

The "lifer law" set forth in M.C.L. Sec. 791.234(4); M.S.A. Sec. 28.2304(4) provides as follows:

"A prisoner under sentence for life or for a term of years, other than prisoners sentenced for life for murder in the first

Page 541

degree and prisoners sentenced for life or for a minimum term of imprisonment for a major controlled substance offense, who has served 10 calendar years of the sentence is subject to the jurisdiction of the parole board and may be released on parole by the parole board, subject to the following conditions: ...."

Both defendant and the prosecutor agree that after serving ten years defendant is eligible for parole consideration under M.C.L. Sec. 791.234(4); M.S.A. Sec. 28.2304(4) where, as here, he was sentenced to life imprisonment for conspiracy to commit first-degree murder. The lifer law statute does not specifically exclude persons convicted of conspiracy to commit first-degree murder and sentenced to life imprisonment from the jurisdiction of the parole board after serving ten calendar years of the sentence. The conspiracy statute, M.C.L. Sec. 750.157a; M.S.A. Sec. 28.354(1), provides for punishment by penalty [164 Mich.App. 488] equal to that which could be imposed if defendant had been convicted of committing the crime...

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