People v. Alford

• Decision Date: 04 March 1981
• Docket Number: Docket No. 49336
• Citation: People v. Alford, 304 N.W.2d 541, 104 Mich.App. 255 (Mich. App. 1981)
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert McClay ALFORD, Defendant-Appellant. 104 Mich.App. 255, 304 N.W.2d 541
• Court: Court of Appeal of Michigan

Page 541

304 N.W.2d 541

PEOPLE of the State of Michigan, Plaintiff-Appellee, v.Robert McClay ALFORD, Defendant-Appellant.

Docket No. 49336.

104 Mich.App. 255, 304 N.W.2d 541

Court of Appeals of Michigan.

March 4, 1981.

Released for Publication April 30, 1981.

[104 MICHAPP 256]Ronald L. Haldy, Green, Haldy, Gibbs & McCabe, P.C., Flint, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol.Gen., Robert E. Weiss, Pros.Atty., Donald A. Kuebler, Asst. Pros.Atty., for plaintiff-appellee.

Before BEASLEY, P. J., and R. B. BURNS and HOEHN, ^* JJ.

HOEHN, Judge.

The defendant appeals as a matter of right the consecutive nature of the sentence imposed upon him in this case.

[104 MICHAPP 257] On February 13, 1979, the defendant pled guilty to a charge of breaking and entering.The Circuit Judge deferred imposition of sentence to permit defendant to enter a drug rehabilitation program.On October 18, 1979, defendant was sentenced to a prison term of six years and eight months to ten years.

The defendant was subsequently convicted of attempted larceny in a building contrary to the provisions of M.C.L. § 750.92;M.S.A. § 28.287andM.C.L. § 750.360;M.S.A. § 28.592, a circuit court misdemeanor punishable by not more than two years in a state penitentiary or not more than one year in the county jail, or by a fine not exceeding $1,000.The date of the offense was October 10, 1979, ten days before defendant was sentenced on the breaking and entering conviction.

On the attempted larceny in a building charge the Circuit Judge imposed a sentence of sixteen months to twenty-four months to be served after the expiration of the breaking and entering sentence.

Consecutive sentencing is not permitted in Michigan except in a situation where a person, who has been charged with a felony, commits another felony while the first charge is still pending.M.C.L. § 768.7b;M.S.A. § 28.1030(2).Consecutive sentencing is not permitted for the commission of a misdemeanor while a felony charge is pending.

The problem in this case arises because of inconsistent statutes.The statute in relation to attempted larceny from a building imposes a maximum penalty of two years in prison and labels the crime "misdemeanor".M.C.L. § 750.92(3);M.S.A. § 28.287(3).However, the current penal code defines a felony as:

"The term 'felony' when used in this act, shall be [104 MICHAPP 258] construed to mean an offense for which the offender on conviction may be punished by death, or by imprisonment, in state prison."M.C.L. § 750.7;M.S.A. § 28.197.

Clearly the particular intention to treat a two-year prison sentence as a misdemeanor in the crime of attempted larceny from a building is inconsistent with the generic definition of a felony contained in M.C.L. § 750.7;M.S.A. § 28.197.

Concerning the construction of statutes, the Michigan Supreme Court said:

"The fundamental rule of construction of statutes is to ascertain and give effect to the intention of the Legislature; courts are bound, whenever possible, so to construe statutes as to give them validity and a reasonable construction; seeming inconsistencies in the various provisions of a statute should be reconciled, if possible, so as to arrive at a meaning which gives effect to all parts of the statute."In re State Highway Comm., 383 Mich. 709, 714, 178 N.W.2d 923, 926(1970).

Where both general principles and a specific intention are at issue, the courts have held:

" 'When a general intention is expressed, and also a particular intention is expressed, and also a particular intention which is incompatible with the general one, the particular intention shall be considered an exception to the general one.'

"The above statement was quoted with approval in Mayor of Port Huron v. City Treasurer of Port Huron, 328 Mich. 99, 112(43 N.W.2d 77(1950)), where it was said, in further discussion, that (pp. 111, 112, 43 N.W.2d 77);

" 'A special statute shall be given effect as an exception to the general statute in order to carry out the legislative intent.Board of Education v. Blondell, 251 Mich. 528(232 N.W. 375(1930)).When a general intention is expressed and also a particular intention which is incompatible with the general one, the particular [104...