Moore v. Buchko

• Decision Date: 13 September 1966
• Docket Number: No. 3,No. 142,142,3
• Citation: 4 Mich.App. 261,144 N.W.2d 670
• Parties: Willie B. MOORE, Plaintiff-Appellant, v. Frank G. BUCHKO, Chairman Michigan Parole Board, Defendant-Appellee. Cal
• Court: Court of Appeal of Michigan — District of US

Page 670

144 N.W.2d 670

4 Mich.App. 261

Willie B. MOORE, Plaintiff-Appellant, v. Frank G. BUCHKO, Chairman Michigan Parole Board, Defendant-Appellee.

Cal. No. 142.

Court of Appeals of Michigan, Division No. 3.

Sept. 13, 1966.

William H. Culver, Morris, Culver & Corsiglia, Kalamazoo, for appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, Donald A. Burge, Pros. Atty., Kalamazoo County, Kalamazoo, for appellee.

Before HOLBROOK, P.J., and McGREGOR and QUINN, JJ.

QUINN, Judge.

By his plea of guilty, plaintiff was convicted of first degree murder October 29, 1938, and was sentenced to life imprisonment. December 9, 1957, the United States Supreme Court reversed the conviction and remanded the case for retrial. ¹ In May of 1958, Moore was tried by a jury and found guilty of second degree murder. He was sentenced June 6, 1958 to a term of 25 to 40 years. In May of 1964, he filed complaint in the Michigan Supreme Court seeking writ of mandamus to require defendant to credit on the sentence of June 6, 1958, the time Moore served from October 29, 1938 to June 6, 1958. By order dated September 3, 1964, that Court directed defendant to show cause why the writ should not be granted. Defendant filed answer to the order to show cause and by order of October 14, 1964, the Supreme Court transferred the case to the Court of Appeals for hearing.

In his brief, plaintiff raises two questions, namely:

1. Is he entitled to the time credit he seeks by virtue of C.L.S.1961, § 769.11a, as amended by P.A.1965, No. 67 (Stat.Ann.1965 Cum.Supp. § 28.1083(1)?

2. Must defendant accept jurisdiction of plaintiff and in determining his eligibility for parole under C.L.S.1961, § 791.234 (Stat.Ann.1965 Cum.Supp. § 28.2304) must defendant in computing time served include the time served on plaintiff's first sentence?

This action is mandamus. The test for issuance of the writ is clearly set forth in Solo v. City of Detroit (1942), 303 Mich. 672, 7 N.W.2d 103, as follows:

'To support mandamus against public officers, plaintiffs must have a clear legal right to performance of the specific duty sought to be compelled and defendants must have the clear legal duty to perform such act; the act involved must be a ministerial act and leave nothing to the exercise of discretion or judgment.' (Syllabus 1.)

It appears clear from reading In re Doelle (1948), 323 Mich. 241, 35 N.W.2d 251, In re De Meerleer (1948), 323 Mich. 287, 35 N.W.2d 255, Attorney General v. Recorder's Court Judge (1954), 341 Mich. 461, 67 N.W.2d 708, and C.L.S.1961, § 769.11a (Stat.Ann.1954 Rev. § 28.1083(1), that prior to P.A.1965, No. 67, supra, there was no legal right to credit the time served on a void sentence nor was there any legal duty of anyone to grant such credit. Act 67 reads as follows:

'Whenever any person has been heretofore or hereafter convicted of any crime within this state and has served any time upon a void sentence, the trial court, in imposing sentence upon conviction or acceptance of a plea of guilty based upon facts arising out of the earlier void conviction, shall in imposing the sentence specifically grant or allow the defendant credit against and by reduction of the statutory maximum by the time already served by such defendant on the sentence imposed for the prior erroneous conviction. Failure of the corrections commission to carry out the terms of said sentence shall be cause for the issuance of a writ of habeas corpus to have the prisoner brought before the court for the taking of such further action as the court may again determine.'

The right and duty above referred to now exists for the first time. The question is are they retroactive to June 6, 1958?

It is the general rule of construction that a statute shall be deemed to have only prospective effect unless a contrary intention is clear. People v. Foster (1933), 261 Mich. 247, 246 N.W. 60. Such contrary intention is not clear from the language employed in Act 67, and from the history of the subject with which it deals as disclosed by Doelle, De Meerleer, Attorney General and C.L.S.1961, § 769.11a, supra, we conclude that if the legislature had intended retroactive effect for Act 67, it would have so stated. Without such retroactive effect, plaintiff had no legal right to the time credit he seeks on June 6, 1958 and the sentencing judge was under no legal duty to grant such credit. Hence, mandamus does not lie against this defendant.

C.L.S.1961, § 791.234 (Stat.Ann.1965 Cum.Supp. § 28.2304) deals with paroles and...