423 N.W.2d 590 (Mich.App. 1988), 100090, People v. Jones

Docket Nº:Docket No. 100090.
Citation:423 N.W.2d 590, 167 Mich.App. 424
Opinion Judge:ON REMAND PER CURIAM.
Party Name:PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ricky Leon JONES, Defendant-Appellant. (On Remand)
Attorney:[167 Mich.App. 425] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Judy A.H. Hughes, Pros. Atty., and Michael A. Nickerson, Asst. Atty. Gen., for the People. State Appellate Defender by Stuart B. Lev, Detroit, for defendant-appellant on appeal.
Judge Panel:Before MAHER, P.J., and GILLIS and WAHLS, JJ.
Case Date:March 22, 1988
Court:Court of Appeals of Michigan
 
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Page 590

423 N.W.2d 590 (Mich.App. 1988)

167 Mich.App. 424

PEOPLE of the State of Michigan, Plaintiff-Appellee,

v.

Ricky Leon JONES, Defendant-Appellant. (On Remand)

Docket No. 100090.

Court of Appeals of Michigan.

March 22, 1988

       Submitted Jan. 11, 1988.

        Released for Publication May 31, 1988.

       [167 Mich.App. 425] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Judy A.H. Hughes, Pros. Atty., and Michael A. Nickerson, Asst. Atty. Gen., for the People.

       State Appellate Defender by Stuart B. Lev, Detroit, for defendant-appellant on appeal.

       ON REMAND

       Before MAHER, P.J., and GILLIS and WAHLS, JJ.

       PER CURIAM.

       This case is before us for a second time, on remand by the Supreme Court, to consider an issue that was not raised in the prior appeal and which was only recently addressed by an appellate court of this state for the first time in People v. Fernandez (On Remand), 164 Mich.App. 485, 417 N.W.2d 540 (1987). 428 Mich. 888 (1987). That issue is whether a person convicted of conspiracy to commit first-degree murder, M.C.L. Secs. 750.157a and 750.316; M.S.A. Secs. 28.354 and 28.548, may be, unlike a person convicted of the substantive crime, eligible for parole. In Fernandez, a two-member majority answered that issue in the affirmative. [167 Mich.App. 426] One member, Judge Gillis, dissented. For many of the reasons expressed by Judge Gillis in his

Page 591

dissent, we hold that a person convicted of the offense in question is not eligible for parole and, therefore, certify this case as being in conflict with Fernandez.

       In finding that a person convicted of conspiracy to commit first-degree murder was parolable, the Fernandez majority principally relied on the fact that the offense was not expressly mentioned as being one for which there could be no parole in the "lifer law," M.C.L. Sec. 791.234(4); M.S.A. Sec. 28.2304(4). 164 Mich.App. 487-488, 417 N.W.2d 540. The lifer law basically provides that persons sentenced to life imprisonment for first-degree murder or for a major controlled substance offense are not eligible for parole. All other prisoners may be eligible for parole after serving ten years of their sentences. Thus, except for first-degree murder and major controlled substance violations, the lifer law does not expressly exclude persons convicted of any other offenses from parole eligibility. Regardless of this, though, we cannot...

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