Ex parte Pardee

• Decision Date: 28 February 1950
• Docket Number: No. 405,405
• Citation: 327 Mich. 13,41 N.W.2d 466
• Parties: Ex parte PARDEE. Motion
• Court: Michigan Supreme Court

Page 466

41 N.W.2d 466

327 Mich. 13

Ex parte PARDEE.

Motion No. 405.

Supreme Court of Michigan.

Feb. 28, 1950.

Before the Entire Bench.

SHARPE, Justice.

Upon petitioner's application, we issued the writ of habeas corpus directed to the warden of the State House of Correction and Branch Prison at Marquette, requiring him to disclose the time and cause of the detention of petitioner. We also issued an ancillary writ of certiorari directed to the judge of the circuit court of Huron county, commending him to certify the records and proceedings in the matter of sentencing petitioner on February 11, 1947, to a term of 10 to 20 years, and amending the sentence on April 26, 1947, 'to read for a period of not less than fourteen and not more than twenty-eight years.'

The warden filed a return showing that petitioner was sentenced to Jackson prison upon conviction on a plea of guilty to the crime of uttering and publishing a forged check with intent to defraud ¹ charged as a third offense. ²

The return of the circuit judge shows that on January 18, 1947, the prosecuting attorney of Huron county filed an information charging petitioner with uttering and publishing a forged check, knowing it to be forged, and with intent to injure and defraud another, such crime being charged as a third offense pursuant to the habitual criminal law of Michigan; that upon arraignment petitioner stood mute and a plea of not guilty was entered by the court; that on February 8, 1947, petitioner was permitted to withdraw his plea of not guilty and plead guilty to the information; that on February 11, 1947, petitioner was sentenced to the State prison at Jackson 'for not less than 10, nor more than 20 years;' and that on April 26, 1947, the court entered an order amending and correcting the sentence record to read 'for a period of not less than fourteen and not more than twenty-eight years.'

A supplemental return to the writ of habeas corpus as taken from the records of the department of corrections shows that petitioner is now serving a sentence of 10 to 14 years in Marquette prison for uttering and publishing imposed by the circuit court of Lapeer county on April 20, 1937, but which petitioner did not begin to serve until March 3, 1939, due to the fact that he was a parole violator at the time of receiving the 1937 sentence; and that the maximum of the 1937 sentence will not expire until sometime in the future at which time petitioner will begin serving the last sentence imposed.

Petitioner urges that the trial court was in error in correcting his sentence to read from 14 to 28 years without petitioner being present in court when the correction was made.

In re Duff, 141 Mich. 623, 105 N.W. 138, petitioner was sentenced for a term of not less than six months and not more than 15 months for larceny of property exceeding $25 in value. We there said: 'In the case at bar, the trial judge did fix the minimum term of imprisonment, and, striking out the provision for a maximum term, the sentence was a lawful sentence. The fixing of a maximum term of imprisonment was unauthorized and void. It was mere surplusage, as much so as though the sentence had provided what clothes the convict should wear, what food he should eat, or when he should be paroled. Rejecting the unauthorized and illegal surplusage, all of the elements of a strictly legal sentence remain. It is no more necessary to look beyond the sentence to determine its full extent and scope than in the Campbell Case, supra. [In re Campbell, 138 Mich. 597, 101 N.W. 826]. In that case the sentence was to confinement in the Detroit House of Correction for a period 'not less than one year,' fixing no maximum term. It is necessary in all such cases to refer to the statute to determine the maximum term, since that is fixed by the statute and need not be referred to in the sentence at all. The sentence need only be consulted for the determination of the minimum term. A sentence under the indeterminate sentence law is to be interpreted in the light of the statutes upon which it is based, and the maximum punishment fixed by law should be read into and considered a part of the sentence and mittimus. People ex rel. Bradley, v. Illinois State Reformatory, 148 Ill. 413, 36 N.E. 76, 23 L.R.A. 139; Miller v. State, 149 Ind. 607, 618, 49 N.E. 894, 40 L.R.A. 109. The unauthorized fixing of the maximum term in the sentence...