People v. Baker, Docket No. 57514

• Decision Date: 06 January 1983
• Docket Number: Docket No. 57514
• Citation: 120 Mich.App. 89,327 N.W.2d 403
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. George Harvey BAKER, Defendant-Appellant. 120 Mich.App. 89, 327 N.W.2d 403
• Court: Court of Appeal of Michigan — District of US

Page 403

327 N.W.2d 403

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. George Harvey BAKER, Defendant-Appellant.

Docket No. 57514.

120 Mich.App. 89, 327 N.W.2d 403

Court of Appeals of Michigan.

Submitted Dec. 9, 1981.

Decided Oct. 5, 1982.

Released for Publication Jan. 6, 1983.

[120 MICHAPP 91] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., L. Brooks Patterson, Pros. Atty., Robert C. Williams, Chief Appellate Asst. Pros. Atty., and Geoffrey H. Nickol, Asst. Pros. Atty., for the People.

Jacobs & Miller by John J. Schutza, Southfield, for defendant-appellant on appeal.

Before MacKENZIE, P.J., and CAVANAGH and WALSH, JJ.

MacKENZIE, Presiding Judge.

Defendant was charged with embezzlement of property of a value of more than $100, M.C.L. Sec. 750.174; M.S.A. Sec. 28.371. On November 16, [120 MICHAPP 92] 1979, defendant pled guilty to larceny of property of a value of more than $100, M.C.L. Sec. 750.356; M.S.A. Sec. 28.588. Defendant admitted taking approximately $18,000 from a gas station at which he was the manager. The court delayed sentencing until January 4, 1980, and imposed the condition that defendant pay $4,000 toward restitution. At the hearing on January 4, 1980, the judge noted that defendant had paid the $4,000 toward restitution, delayed sentencing until December 19, 1980, and imposed the condition that defendant pay further restitution at the rate of $200 per month. At the hearing on December 19, 1980, the judge noted that defendant had paid only $300 toward restitution since the previous hearing. Defendant explained that he had been out of work and unable to find a job. Defendant was sentenced to imprisonment for two to five years. Defendant's motion to vacate the sentence was denied and defendant appeals by right.

I

Defendant first argues that through delay the circuit court lost jurisdiction to sentence him and that his sentence must therefore be vacated. Michigan courts have long been empowered to delay sentencing for good cause for a reasonable time after trial and conviction. People v. Reilly, 53 Mich. 260, 18 N.W. 849 (1884); People v. Kennedy, 58 Mich. 372, 25 N.W. 318 (1885). In People v. Jagosz, 253 Mich. 290, 235 N.W. 160 (1931), the Court held that a delay of 63 days after conviction before sentence was imposed presented no error even though no cause for the delay was shown. By 1961 P.A. 185 the Legislature amended the statute which is now M.C.L. Sec. 771.1; M.S.A. Sec. 28.1131 to specifically authorize [120 MICHAPP 93] delayed sentencing in certain circumstances. That statute now provides in relevant part:

"[I]n an action in which the court may place the defendant on probation, it may delay the imposing of sentence of the defendant for a period of not to exceed 1 year for the purpose of giving the defendant an opportunity to prove to the court his eligibility for probation or other leniency compatible with the ends of justice and the rehabilitation of the defendant. When the sentencing is delayed, the court shall make an order stating the reason for delay, which order shall be entered upon the records of the court. The delay in passing sentence shall not deprive the court of jurisdiction to sentence the defendant at any time during the extended period."

The statute was construed in People v. McLott, 70 Mich.App. 524, 528-531, 245 N.W.2d 814 (1976):

"The deferred sentencing statute is not as plain and unambiguous as defendant would have us believe. It states that the court does not lose jurisdiction to sentence if sentencing is completed within one year. It does not forthrightly state that jurisdiction is lost if for some reason, particularly if the reason be sound or unavoidable, sentencing is postponed beyond the year deadline. Thus, it is only inferentially that one arrives at a conclusion that in every instance jurisdiction is lost. We also note that when carefully read the statute grants a one-year delay 'for the purpose of giving the defendant an opportunity to prove to the court his eligibility for probation or such other leniency as may be compatible with the ends of justice'. Thus, the statute does not speak to whether an additional delay can be granted for some other purposes such as allowing a trial judge to recover from illness. Accordingly, there is room for construction of the statute. Neither logic nor precedent based upon analogous situations leads us to conclude that the Legislature intended that jurisdiction is irretrievably lost in every situation where the delay in sentencing exceeds one year. * * *

[120 MICHAPP 94] "An analagous [sic ] situation is found in the Court's construction of the statutory 180-day rule in MCLA 780.131; MSA 28.969(1). That statute requires that where charges are pending against an inmate in the Department of Corrections 'such inmate shall be brought to trial within 180 days' and MCLA 780.133; MSA 28.969(3), provides that if action is not commenced within the 180-day period 'no court of this state shall any longer have jurisdiction thereof'. Despite the clear wording of the statute the Court has held that the law doesn't require actual trial but only a good faith effort to try on the part of the prosecution. People v. Castelli, 370 Mich. 147, 153; 121 N.W.2d 438 (1963), People v. Wilder, 51 Mich.App. 280, 284; 214 N.W.2d 749 (1974). * * *

"Our analogy to the statutory 180-day rule does not imply that we hold that the one-year limitation of the within statute may be exceeded whenever a good faith effort is evident. In our opinion the prompt and efficient administration of justice including a final dispensation of sentence mandates a stricter interpretation of the statute, viz.: one which would permit the one-year period to be exceeded in only the most limited circumstances." (Footnote omitted.)

In People v. Turner, 92 Mich.App. 485, 489, 285 N.W.2d 340 (1979), the Court said:

"Waiver of the right to be sentenced by consenting to a delay is meaningless. Such a consent is inherently unsound since a defendant, as a practical matter, will always opt for freedom. Furthermore, the question of retention or loss of jurisdiction should not depend solely on the consent or waiver of the defendant. See People ex rel Harty v. Fay, 10 N.Y.2d 374; ; 179 N.E.2d 483 (1961)."

While we agree that the question of retention or loss or jurisdiction should not depend solely on the consent or waiver of defendant, we find the Turner panel's characterization of waiver as "meaningless" impossible to reconcile with the Supreme [120 MICHAPP 95] Court's holding in In re Tinholt, 223 Mich. 483, 484, 194 N.W. 131 (1923):

"By consenting, plaintiff has waived the right to complain of the indefinite postponement. Assuming that, though the agreed postponement was indefinite, the delay thereunder should not be unreasonable, we find, under the circumstances, no unreasonable delay."

Here defendant was eventually sentenced one year and 33 days after his plea of guilty. However, as was noted in McLott, the statute does not deprive the sentencing court of jurisdiction when an additional delay takes place for some purpose other than those purposes involved in deferred sentencing. A defendant may not be sentenced for a felony before the judge obtains a presentence report. People v. Brown, 393 Mich. 174, 224 N.W.2d 38 (1974). Resentencing is required where the record does not reveal that a presentence report was prepared or consulted. People v. McDonald, 99 Mich.App. 150, 297 N.W.2d 639 (1980). In an ordinary case, we would hold that the statutory period does not begin to run until the original sentence hearing, provided that the hearing was not delayed beyond a reasonable time necessary for preparation of a presentence report. Compare People v. Felker, 61 Mich. 110, 113, 27 N.W. 869 (1886). Here, however, the record demonstrates that proper procedures were bypassed with defendant's consent. At the plea proceeding on November 16, 1979, immediately after a factual basis for the plea was elicited from defendant, the following took place:

"THE COURT: Very well, the Court wants to indicate it has discussed the matter of your sentence in chambers this morning with Counsel and I want to ask the Prosecutor and Defense Counsel if in their opinion the Court has complied with Court Rule 785.7?

[120 MICHAPP 96] "[Assistant prosecutor]: Yes, your Honor.

"[Defense counsel]: Defense is satisfied.

"THE COURT: I'm satisfied the plea is accurate, voluntarily and understandingly made and I will accept the plea.

"What I'm going to do is delay sentencing in this matter until January 4th, 1980, for the condition that you make payment into the court of $4,000 at that time. At that time, then, we'll reconsider your sentence."

As the record does not show that a presentence report was prepared or consulted before the foregoing took place, part of the delay between November 16, 1979, and January 4, 1980, was attributable to the necessity for preparation of a presentence report. It is not clear if all of the delay was attributable to that necessity, since January 4, 1980, appears to have been selected for the next sentencing hearing as part of an invalid attempt at delayed sentencing. We hold that, under the unique circumstances presented here, the statutory period did not begin to run until after a reasonable time necessary for preparation of a presentence report. We note that, in any event, the delay of 33 days beyond the statutory one-year period was less than the unexplained delay of 63 days which the Court in Jagosz, supra, held did not deprive the sentencing court of jurisdiction. We further note that defendant consented to the delay in sentencing. At sentencing on December 19, 1980, defendant sought a further delay on the ground that he had recently qualified for a job and would soon be able to make further restitution. Under the circumstances presented here, we cannot say that the circuit court lost jurisdiction to sentence defendant.

II

Defendant argues...