People v. Bachman, Docket No. 17045

• Decision Date: 29 November 1973
• Docket Number: Docket No. 17045,No. 2,2
• Citation: 50 Mich.App. 682,213 N.W.2d 800
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Lawrence BACHMAN, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 800

213 N.W.2d 800

50 Mich.App. 682

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Lawrence BACHMAN, Defendant-Appellant.

Docket No. 17045.

Court of Appeals of Michigan, Division No. 2.

Nov. 29, 1973.

Released for Publication Jan. 21, 1974.

James R. Neuhard, State Appellate Defender, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Bruce A. Barton, Pros. Atty., for plaintiff-appellee.

Before BASHARA, P.J., and McGREGOR and BRONSON, JJ.

McGREGOR, Judge.

On April 17, 1972, defendant escaped from the Wing Farm State Prison, where he had been serving a 3-to 10-year sentence for breaking and entering. Defendant was later arrested and on October 5, 1972, was notified by Warden Egeler that 2 months and 17 days of his earned good time had been forfeited because of his escape. ¹

On October 25, 1972, defendant was arraigned in Jackson County Circuit Court on the charge of escape from prison and pled guilty to that charge on December 14, 1972; on January 9, 1972, the defendant was sentenced to a 1-year consecutive sentence. The trial judge made no grant of credit for the time defendant had been incarcerated between his arraignment and sentencing on the prison escape charge since during that period of time defendant was serving his prior sentence for breaking and entering.

On appeal, defendant first contends that the administrative forfeiture of earned good time, combined with a criminal conviction and sentence for the same act of escape, violates the double jeopardy provision of the 5th Amendment.

Michigan law is clear on this issue. The courts of this state have consistently held that administrative forfeiture of good time combined with a conviction and sentence in a criminal proceeding in a court of justice is not violative of the 5th Amendment prohibition against double jeopardy. People v. Alexander, 39 Mich.App. 607, 197 N.W.2d 831 (1972); People v. Lewis, 42 Mich.App. 121, 201 N.W.2d 341 (1972).

The position of this Court, that double jeopardy is not violated by a combination of administrative forfeiture and criminal conviction for the act of escape, is based upon two elements:

(1) Double jeopardy requires an identity of offenses. The single act of escape constitutes both a statutory criminal offense and an offense against the rules of the prison evoking the 'good time' forfeiture provisions of M.C.L.A. § 800.33; M.S.A. § 28.1403. Thus, no 'identity of offenses' exists. People v. Wilson, Supra; People v. Alexander, Supra.

(2) 'Jeopardy,' within the meaning of the constitutional double jeopardy provision, requires criminal prosecution in a court of justice. An administrative proceeding resulting in the forfeiture of good time is not a 'criminal prosecution in a court of justice.' People v. Shastal, 26 Mich.App. 347, 182 N.W.2d 638 (1970).

Defendant has failed to convince this Court that abandonment of the case law cited above is either necessary or proper. Accordingly, defendant's first contention is without substantial merit.

The second and more difficult issue is whether the trial court erred in failing to grant defendant credit against his escape sentence for the time he spent incarcerated between his arraignment and sentencing.

Previous attempts to determine the applicability of the credit granting statute in cases involving both concurrent and consecutive sentences have engendered a division of opinion in this Court. ² Thus, our task is not merely to locate and correctly apply existing precedent, but, rather, to choose which of two conflicting views to adopt. The ability and persuasiveness with which the opposing positions have been articulated renders that task even more difficult.

At the center of this precedential conflict is M.C.L.A. § 769.11b; M.S.A. § 28.1083(2), which provides:

'Whenever any person is hereafter convicted of any crime within this state and has served any time in jail prior to sentencing because of being denied or unable to furnish bond for the offense of which he is convicted, the trial court in imposing sentence shall specifically grant credit against the sentence for such time served in jail prior to sentencing.'

The specific question before us is whether the trial court erred in denying the defendant the benefit of the foregoing statute in imposing sentence for the crime of prison escape. For the following reason we hold that he did not so err.

The sentence for prison escape is Mandatorily consecutive. M.C.L.A. § 750.193; M.S.A. § 28.390 provides, in pertinent part, that prison escape 'shall be * * * punishable by further imprisonment * * * To be served after the termination, pursuant to law, Of any sentence or sentences then being served.' ³ The conflict between the credit-granting statute and the mandatory consecutive sentence statute is obvious. In the former, the Legislature expressed its intent that credit be granted for time spent in jail for 'any crime' between arraignment and sentencing. In the latter, the Legislature unambiguously directed that the sentence for prison escape commence at the completion of any former sentences 'then being served'. Thus, in a case such as this, where the defendant was serving a valid, prior sentence between the time of arraignment and sentencing on a charge of prison escape, to grant him credit against the sentence imposed for the time between arraignment and sentencing is to contravene the Legislative directive that the prison escape sentence commence Only at the expiration of the prior sentences. we are faced, therefore, with a conflict between a general statute granting credit and a more specific statute which, in effect, denies such credit. In such circumstances, it is a fundamental rule of statutory construction that the specific statute takes precedence over the general and is...