In re Doelle

• Decision Date: 17 December 1948
• Docket Number: Motion No. 212.
• Citation: 323 Mich. 241,35 N.W.2d 251
• Parties: In re DOELLE.
• Court: Michigan Supreme Court

323 Mich. 241

35 N.W.2d 251

In re DOELLE.

Motion No. 212.

Supreme Court of Michigan.

Dec. 17, 1948.

Original proceeding in the nature of habeas corpus by Elmo J. Doelle, also known as E. Jerome Doelle, to obtain release from imprisonment in the State Penitentiary.

Writ dismissed.

Before the Entire Bench.

BUTZEL, Justice.

On the filing of a petition which we have treated as one for a writ of habeas corpus by Elmo J. Doelle, also known as E. Jerome Doelle, an order was issued directing the warden of the State's prison at Jackson, Michigan, to show cause why the writ should not be granted. The return and accompanying exemplification of record shows that on November 17, 1947, petitioner pleaded guilty to the crime of larceny from a store, was sentenced to the State's prison at Jackson, Michigan, for a term of from one of four years, with a recommendation that he serve one year, and that by virtue of this sentence he is now imprisoned. Inasmuch as a complete record is here, we shall consider the case the same as if it were also here on certiorari. Petitioner appears in pro personam. His petition is very informal.

In the November, 1939, term of the recorder's court for the city of Detroit, an information containing two counts was filed against petitioner and another party. In the first court they were charged with breaking and entering a building in the nighttime with the intent to commit larceny therein, and in the second count with larceny by stealing in a store. See Comp.Laws 1940 Cum.Supp., § 17115-110 and § 17115-360, Stat.Ann. § 28.305 and § 28.592. The jury returned a verdict in the following form: ‘We find both defendants guilty as charged.’ Petitioner was thereupon sentenced to not less than 7 1/2 years nor more than 15 years in State's prison for the crime of breaking and entering in the nighttime. The crime of larceny by stealing in a store was not mentioned. This is shown by photostatic copies of the record filed by plaintiff. An incorrect entry in the journal also make at the time of conviction was corrected in 1947 so as to conform with the verdict of the jury. A motion for a new trial was granted on or about October 6, 1947, on the ground that the verdict did not point out the offense of which petitioner had been found guilty. An order was entered vacating and setting aside the previous sentence. The court relied on People v. Huffman, 315 Mich. 134, 23 N.W.2d 236, in granting a new trial and setting aside the verdict.

It also appears from the record that petitioner was granted a parole while serving the term of 7 1/2 to 15 years, but on its violation was returned to prison. On the new trial after an unrecorded colloquy between the court and counsel, defendant's attorney stated that defendant desired to plead guilty to the second count in the information. The prosecuting attorney stated he had no objection to acceptance of the plea by the court. After interrogating the complaining witness and the defendant, the court accepted the plea, found defendant guilty on the second count of the information, and after first securing a report from the probation officer, sentenced him to a term of not less than one and not more than four years imprisonment with a recommendation that he serve the minimum term. The effect of the acceptance of the plea of guilty as to the second court of the information was to free him from the charge of breaking and entering contained in the first court.

Defendant had served almost eight years of the original sentence when thus resentenced. The important question now presented is whether, in view of the fact that the maximum term of imprisonment for the crime which petitioner has been found guilty of is four years, Comp.Laws 1940 Cum.Supp. § 17115-503, Stat.Ann. § 28.771, should he not have been released from further imprisonment when he had already served more than the maximum term for larceny by stealing in a store? He was sentenced at the first trial for a maximum of 15 years for breaking and entering at nighttime, nothing whatsoever being said at the time of sentence in regard to the crime of larceny by stealing in a store, defined by statute as a different crime from breaking and entering in the nighttime. Defendant claims that the lesser offense in this particular crime is included in the greater crime.

The length of imprisonment for a specific felony is a matter for legislative determination and is not subject to judicial supervision unless the sentence imposed violates the provisions of the statutes. People v. Harwood, 286 Mich. 96, 281 N.W. 551. The attorney general calls our attention to a statement in 24 C.J.S., Criminal Law, § 1990, page 1216, as follows:

‘Where the original sentence imposed is void, the action of the court in expunging the first and imposing another does not subject accused to double punishment, even though he has served part of the void sentence. Likewise, where an erroneous sentence is reversed and remanded for a proper punishment and accused is resentenced after having served part of the erroneous sentence, he is not punished twice for the same offense, although he is compelled to suffer solitary confinement twice, and the resentence results in confinement for a longer period than the term for which he originally was sentenced.’

He also calls our attention to State v. Parks, 67 Ohio App. 96, 36 N.E.2d 42, and State ex rel. Drankovich v. Murphy, 248 Wis. 433, 22 N.W.2d 540, but in both of these cases the precise question here presented was not involved, as in neither case had the prisoner previously served the maximum sentence provided by law.

Petitioner calls attention to a number of cases that have arisen in the recorder's court for the city of Detroit in which he was convicted, where, under similar circumstances, the court in resentencing the prisoner gave credit for time already served by specifying that the new sentence should run from the date of the original sentence. However the question did not reach our court in these cases.

Where a defendant who has been convicted of a felony is subsequently informed against as a second, third or fourth offender under the habitual criminal statute and is convicted on such charge, the statute provides that ‘the court shall sentence him to the punishment prescribed * * * and shall vacate the previous sentence, deducting from the new sentence all time actually served on the sentence so vacated if required.’ 3 Comp.Laws 1929, § 17341, Stat.Ann. § 28.1085.

In People v. Dane, 81 Mich. 36, 45 N.W. 655, 657, the trial court imposed a new sentence subsequent to the first sentence being set aside, and this court stated that the first sentence might be treated as never having been imposed, ‘nothing having been done by way of carrying such sentence into execution.’ In People v. Farrell, 146 Mich. 264, 109 N.W. 440, there were four opinions filed. Chief Justice Carpenter in his opinion stated:

‘Where that first sentence is illegal-and I think it clear that the sentence imposed on defendant by the trial court in this case is to be regarded as illegal-the court has power to substitute for it a legal sentence (McCormick v. State, , 99 N.W. 237;People v. Dane, 81 Mich. 36, 45 N.W. 655), and its right to do this is not impaired by the circumstance that the illegal sentence has been partly executed (McCormick v. State, supra), though that circumstance will undoubtedly be considered by the trial court in determining the extent of defendant's punishment.’

In People v. Gilbert, 163 Mich. 511, 128 N.W. 756, Ann.Cas.1912A, 894, we reversed a conviction on the ground that the respondent had been found guilty of a felony which the proofs did not show was committed. In refusing to remand the case for further proceedings on a lesser included offense, we took into consideration the fact that the maximum term of imprisonment which could be imposed for the lesser offense was three months and that the respondent had served more than that period of time under the sentence of the court. We ordered that the respondent be discharged from confinement.

The cases from other jurisdictions are helpful but in many instances can be distinguished. In many jurisdictions where similar...