People v. Benda
| Decision Date | 01 October 1987 |
| Docket Number | No. 92813,92813 |
| Citation | 412 N.W.2d 705,162 Mich.App. 255 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Daniel BENDA, Defendant-Appellant. 162 Mich.App. 255, 412 N.W.2d 705 |
| Court | Court of Appeal of Michigan — District of US |
[162 MICHAPP 256] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Carl J. Marlinga, Pros. Atty., Don L. Milbourn, Chief Appellate Lawyer, and Edward L. Graham, Asst. Pros. Atty., for the People.
Neil H. Fink and David Griem, Detroit, for defendant-appellant on appeal.
Before DANHOF, C.J., and SHEPHERD and PORTER, * JJ.
Defendant pled guilty to the unlawful manufacture, delivery, or possession of a mixture containing cocaine in an amount of 50 grams or more but less than 225 grams, with intent to manufacture or deliver the same. M.C.L. Sec. 333.7401(1), (2)(a)(iii); M.S.A. Sec. 14.15(7401)(1), (2)(a)(iii). The sentencing court ordered that defendant be placed on life probation. The order of probation included a condition that defendant be incarcerated in the county jail during the first year of probation.
Defendant's sole contention on appeal is that the circuit court exceeded its statutory authority by imposing a one-year jail term as a condition of probation. Since we agree, we remand for resentencing.
The offense for which defendant was convicted carries a penalty of either imprisonment for ten to [162 MICHAPP 257] twenty years or life probation. Life probation is statutorily authorized only for two stated offenses, the specific offense for which defendant was convicted, M.C.L. Sec. 333.7401(2)(a)(iii); M.S.A. Sec. 14.15(7401)(2)(a)(iii), and the similar offense of possession of a controlled substance of the same classifications and in the same quantity as the offense for which defendant was convicted, M.C.L. Sec. 333.7403(2)(a)(iii); M.S.A. Sec. 14.15(7403)(2)(a)(iii). 1 See M.C.L. Sec. 771.1(3); M.S.A. Sec. 28.1131(3); M.C.L. Sec. 771.2(3); M.S.A. Sec. 28.1132(3). Both offenses carry life probation only if the amount of the controlled substance in the defendant's possession is 50 grams or more, but less than 225 grams.
M.C.L. Sec. 771.3; M.S.A. Sec. 28.1133 provides in pertinent part:
We read subsection (3) as an express legislative directive that the sentencing court not impose conditions that would otherwise be permissible under subsection (2) for a probation of lesser duration than life. The statute reflects a legislative determination that the imposition of life probation is sufficiently harsh that it need not be enhanced by a one-year jail term or any of the other conditions set forth in subsection (2). In this regard, it is noteworthy that the maximum probation period for any felony amenable to probation that does not carry a possible life probation sentence is five years (two years in the case of any nonfelony). M.C.L. Sec. 771.2(1); M.S.A. Sec. 28.1132(1).
The people argue that M.C.L. Sec. 771.3(4); M.S.A. Sec. 28.1133(4) vests the sentencing court with sufficient discretion to condition defendant's probation with a one-year jail sentence. Subsection (4) provides:
The people's proffered interpretation would effectively circumvent the subsection (3) prohibition against the imposition of a one-year jail term in addition to life probation. Although the sentencing court's discretion in matters of the conditions to be attached to probation is considerable, People v. Chamberlain, 136 Mich.App. 642, 650, 358 N.W.2d 572 (1984), lv. den. 421 Mich. 864 (1985), this discretion is effectively limited by subsection (3).
Our reading is consistent with two generally recognized principles of statutory construction. First, subsections (2) and (3), read together, constitute a specific exception to the more general subsection (4) grant of judicial authority to fashion conditions of probation. Where a specific provision and a general provision encompass the same subject matter, the specific provision is controlling. Bannan v. Saginaw, 120 Mich.App. 307, 319-320, 328 N.W.2d 35 (1982), aff'd, 420 Mich. 376, 362 N.W.2d 668 (1984). Second, the adoption of the prosecutor's interpretation would render subsection (3) a nullity. This would violate the principle that statutes are to be construed in pari materia in order to give each component subsection the fullest effect. Parks v. DAIIE, 426 Mich. 191, 199, 393 N.W.2d 833 (1986).
Having concluded that the circuit court exceeded its statutory authority by imposing the one-year jail term as a condition of probation, we must now address the question of what is an appropriate appellate remedy. Rather than simply vacate the illegal condition, we hold that the proper remedy is to remand for resentencing. In so holding,[162 MICHAPP 260] we do not mean to intimate what sentence the trial judge should impose, except that the sentence must not exceed the court's statutory authority.
Our conclusion is consistent with the general principles articulated in the seminal sentencing case of People v. Coles, 417 Mich. 523, 339 N.W.2d 440 (1983), where it was recognized that only the trial court has the authority to impose a sentence. The underlying policy is to insure that the sentence is "tailored to fit the particular circumstances of the case and the defendant." Id., p. 537, 339 N.W.2d 440. If we were to vacate the illegal condition and otherwise affirm the probation order, the resultant sentence would be something other than what the trial judge imposed. Our power to amend the final judgment of the lower court, see MCR 7.216(A)(1), (7), must give way to the weighty policies underscored in Coles.
In People v. Gauntlett, 134 Mich.App. 737, 352 N.W.2d 310 (1984), modified, 419 Mich. 909, 353 N.W.2d 463 (1984), this Court invalidated an order conditioning probation on the administration of Depo-Provera treatments for a defendant convicted of first-degree criminal sexual conduct, holding that the condition of probation was unlawful. Because the sentence without the condition was excessively lenient under the standard for sentence review established in Coles, supra, this Court decided that remand for resentencing was the appropriate remedy. On appeal to our Supreme Court, the remedy of resentencing was not disturbed, but the Court summarily concluded that this Court, having decided that the condition of probation was illegal "should have remanded the case, without further direction, ... for resentencing." (Emphasis added.) This Court's Coles analysis was "premature." The holding of the Supreme Court was that the defendant must be sentenced anew on remand.
[162 MICHAPP 261] Consistent with the holding in Gauntlett is People v. Rondon, 144 Mich.App. 410, 375 N.W.2d 761 (1985), rev'd, 424 Mich. 864, 380 N.W.2d 761 (1985), where the defendant was charged with an offense committed while other criminal charges were pending. The defendant pled guilty in both matters and was sentenced first for the subsequently committed offense. The first sentencing judge ordered that the prison term run consecutively to the term yet to be imposed in the other case. This Court vacated the discretionary consecutive sentence, imposed pursuant to M.C.L. Sec. 768.7b; M.S.A. Sec. 28.1030(2), on the ground that only the second sentencing judge could impose a consecutive sentence. Rejecting the prosecutor's contention that the proper appellate remedy was to remand "for a fresh exercise of discretion," 144 Mich.App. 414, 375 N.W.2d 761, this Court further ordered that both sentences run concurrently. Our Supreme Court remanded for resentencing because the first sentencing judge (who imposed the invalid sentence) may have erroneously perceived that the other sentencing judge had already imposed a sentence. The Supreme Court explicitly provided that its remand mandate would permit the sentencing judge to exercise his discretion to consider the imposition of a consecutive sentence. Again the underlying principle is that a partially invalid sentence is properly remedied by a remand for resentencing so that the trial court is enabled to fashion a sentence tailored to the specific circumstances of the defendant and the needs of the community.
We do not read People v. Carl Smith, 69 Mich.App. 247, 244 N.W.2d 433 (1976), to require a contrary result. In that case, the trial court corrected the invalid probation condition prior to appeal. Furthermore, this Court in Carl Smith did not preclude resentencing, but rather it noted only [162 MICHAPP 262] that the "ordinary remedy" is "remand for entry of a proper order of probation." Id., p. 249, 244...
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