People v. Diamond, Docket No. 80732
| Decision Date | 12 November 1985 |
| Docket Number | Docket No. 80732 |
| Citation | 376 N.W.2d 192,144 Mich.App. 787 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. David Burnett DIAMOND, Defendant-Appellant. 144 Mich.App. 787, 376 N.W.2d 192 |
| Court | Court of Appeal of Michigan — District of US |
[144 MICHAPP 787] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., G. Michael Hocking, Pros. Atty., and K. Davison Hunter, Asst. Pros. Atty., for the People.
James R. Neuhard, State Appellate Defender by Ronald J. Bretz, Lansing, for defendant-appellant on appeal.
[144 MICHAPP 788] Before DANHOF, C.J., and KELLY, and DODGE *, JJ.
Defendant pled guilty to breaking and entering an occupied dwelling, M.C.L. Sec. 750.110; M.S.A. Sec. 28.305, and unarmed robbery, M.C.L. Sec. 750.530; M.S.A. Sec. 28.798. Defendant was sentenced to two concurrent prison terms of from 10 to 15 years for the convictions. Defendant appeals as of right.
The sentencing information report indicated a guideline sentence range of from 6 to 24 months. The trial judge stated the following reasons for departure: "[D]efendant is a habitual criminal who participated in a B & E where an 82-year-old woman was held under a blanket." At sentencing, the judge elaborated, also listing protection of society, rehabilitation, and deterrence as reasons for the sentences imposed.
Defendant first argues that the stated reasons for departure--defendant's prior criminal history and the circumstances surrounding the offense--were inadequate reasons for departure because the seriousness of the offense and defendant's prior record already had been taken into account in calculating the minimum sentence range under the guidelines.
Administrative Order 1984-1, 418 Mich lxxx, states that the guidelines are mandatory "to assist the Supreme Court in evaluating the sentencing guidelines" and a "judge may depart from the recommended minimum range for the reasons, and in the manner, prescribed by the guidelines". The guidelines departure policy indicates that departure is appropriate when the trial judge believes the sentence range does not reflect sentencing practices of the state's trial judges or justice requires a longer sentence than that recommended [144 MICHAPP 789] by the guidelines because of the circumstances of the case at bar. The reasons for departure in the present case fall within the latter.
Defendant contends that this Court should follow Minnesota law. In Minnesota, a sentencing court may not rely on a defendant's criminal history as grounds for imposing a longer sentence than that recommended by the guidelines because the guidelines have already taken criminal history into account. See State v. Magnan, 328 N.W.2d 147 (Minn.1983). The sentencing guidelines in Minnesota require "substantial and compelling circumstances" for departure from the "presumptive sentence". Magnan, supra, and cases cited therein. The...
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