People v. Cantu

• Decision Date: 01 September 1982
• Docket Number: Docket No. 60663
• Citation: People v. Cantu, 323 N.W.2d 719, 117 Mich.App. 399 (Mich. App. 1982)
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Oscar CANTU, Jr., Defendant-Appellant. 117 Mich.App. 399, 323 N.W.2d 719
• Court: Court of Appeal of Michigan

Page 719

323 N.W.2d 719

PEOPLE of the State of Michigan, Plaintiff-Appellee, v.Oscar CANTU, Jr., Defendant-Appellant.

Docket No. 60663.

117 Mich.App. 399, 323 N.W.2d 719

Court of Appeals of Michigan.

Submitted May 13, 1982.

Decided June 22, 1982.

Released for Publication Sept. 1, 1982.

[117 MICHAPP 400]Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol.Gen., Paul F. Berger, Pros.Atty., and C. Sherman Mowbray, Asst. Pros.Atty., for the People.

Sandborn & Theophelis, P. C., Lansing, for defendant-appellant.

Before ALLEN, P. J., and CYNAR and FALAHEE, ^* JJ.

CYNAR, Judge.

Defendant was charged with delivery of marijuana, M.C.L. Sec. 333.7401(1), (2)(c);M.S.A. Sec. 14.15(7401)(1), (2)(c), conspiracy to deliver marijuana, M.C.L. Sec. 750.157a;M.S.A. Sec. 28.354(1), and felony firearm, M.C.L. Sec. 750.227b;M.S.A. Sec. 28.424(2).On September 10, 1981, defendant pled guilty to the delivery and felony-firearm charges pursuant to a plea bargain whereby the conspiracy charge was [117 MICHAPP 401] dismissed along with a supplemental information which charged defendant as a second-felony offender.As part of the bargain, the prosecution also agreed to contact prosecuting officials in Texas and request dismissal of any pending charges against defendant in that state.

On October 1, 1981, defendant was sentenced to serve the mandatory 2 years on the felony-firearm conviction followed by a consecutive 2 1/2 to 4 years on the delivery charge.The trial judge explained the sentence as follows:

"THE COURT: It's mandatory by law that I sentence you on the felony, the gun charge conviction, Mr. Cantu, to two years in the State Department of Corrections, and I so sentence you.

"On the Delivery of Marijuana Charge, I'm satisfied that from the amount involved, $30,000.00 worth, that you are something other than a street pusher, that you are a dealer.On that charge, I sentence you to the Michigan Department of Corrections for not more than four years and not less than two-and-a-half years.This sentence will start commencing at the completion of the two-years felony on the gun conviction.

"You'll receive credit against that latter sentence for the 119 days which you've already spent in confinement."

Defendant's counsel objected to credit not being applied to the felony-firearm portion of the sentence.This objection and the court's response were as follows:

"MR. THEOPHELIS: May I make a comment, your Honor?

"THE COURT: Yes.

"MR. THEOPHELIS: Regarding the credit sentence, he was incarcerated on both charges.Wouldn't he get credit on both counts?

"THE COURT: I don't know.They have to run consecutively.[117 MICHAPP 402]He doesn't get credit twice.He doesn't get 238 days credit, so I assume the credit would come off the end.

"MR. THEOPHELIS: Well,--

"THE COURT: I don't know that I can apply the credit against the two-year mandatory sentence, so I applied it against the sentence which will run later."

Defendant appeals as of right, claiming that the question of credit for time served in jail was improperly handled by the trial court.

I.

Defendant first contends that he should be given 119 days credit on each of his consecutive prison terms.Since the terms are consecutive the result would then be a total of 238 days of credit.Defendant claims that this result is mandated by a literal reading of M.C.L. Sec. 769.11b;M.S.A. Sec. 28.1083(2), the credit for time served statute, 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."

To interpret the statute in the manner advanced by defendant would lead to an absurd result in light of the purpose of the statute.The credit for time served statute was enacted to place a defendant who is unable to post bond on an equal footing with one who can do so with respect to the length of incarceration to which each is ultimately subject.People v. Davis, 87 Mich.App. 72, 273 N.W.2d 591(1978).Under defendant's construction [117 MICHAPP 403] of the statute, the defendant who cannot post bail is put in a superior position by receiving a double credit for the time served.This is clearly not the intention of the statute.Rather, the statute envisions only a one-time credit for a given period of incarceration as opposed to multiple credit.People v. Sturdivant, 97 Mich.App. 711, 713, 296 N.W.2d 157(1980).Furthermore,...