Canfield v. Comm'r of Pardons, Motion No. 416.
| Decision Date | 07 June 1937 |
| Docket Number | Motion No. 416. |
| Parties | CANFIELD v. COMMISSIONER OF PARDONS AND PAROLES et al. |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
Original mandamus action by Raymond Canfield against Hilmer Gellein, commissioner of pardons and paroles, and others.
Writ denied.
Argued before the Entire Bench.
Raymond W. Starr, Atty. Gen., and Edmund E. Shepherd and Andrew Demaggio, Asst. Attys. Gen., for defendants.
December 27, 1926, plaintiff was convicted of the crime of breaking and entering a shop in the nighttime, contrary to 3 Comp.Laws 1929, § 16948, which provided a maximum penalty of 15 years imprisonment therefor. The judgment of sentence, however, read a minimum term of 2 years and a maximum term of 5 years, with recommended maximum of 2 years and 6 months.
August 20, 1928, plaintiff was released on parole. November 12, 1928, while on parole he committed the crime of robbery-armed, in violation of 3 Comp.Laws 1929, § 16722, the maximum penalty for which was life or any number of years. On December 28, 1928, plaintiff was sentenced to serve a minimum of 20 years and a maximum of 40 years for such offense.
March 20, 1929, on report to him of plaintiff's sentence for robbery-armed and on recommendation of the supervisor of paroles, the commissioner of pardons and paroles entered an order that plaintiff serve his original sentence for breaking and entering, as imposed on December 27, 1926, before beginning the serving of his sentence for robbery-armed.
February 12, 1936, the commissioner, acting under Act No. 115, Pub.Acts 1931, made an order annulling the remaining portion of plaintiff's first sentence (for breaking and entering) to permit him to commence serving his second sentence (for robbery-armed). Plaintiff is held by defendants and the prison officers as having commenced service of his term for robbery-armed on February 12, 1936.
At no time has plaintiff had a hearing on the charge of violation his parole.
His contentions are that his first sentence would have expired by operation of law in five years, because of the judgment of the court; but that, in fact, it expired on his return to prison because the failure of defendants and their predecessors to accord him a hearing for violation of parole estopped the state from further imprisoning him under the first sentence; that the order continuing his first sentence after his return to prison was unwarranted and unlawful; that his second sentence commenced to run on December 28, 1928, the day it was imposed; and that defendants refuse to correct the records of their department and of the prison to conform to his legal rights.
The action is mandamus, to require defendants to accord plaintiff credit on the term for robbery -armed of all time served since December 28, 1928, and to correct the records accordingly.
In 1926, when plaintiff was sentenced for breaking and entering, as now, the indeterminate sentence law provided: ‘The maximum penalty provided by law shall be the maximum sentence in all cases except as herein provided and shall be stated by the judge in passing sentence.’ 3 Comp.Laws 1915, § 15859; now 3 Comp.Laws 1929, § 17336.
The statute governed the maximum term; the court could not change it; the provision in the judgment of sentence of a maximum term of 5 years was a nullity; by force of law, the...
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