People v. Jaynes

• Decision Date: 27 April 1970
• Docket Number: Docket No. 6800,No. 2,2
• Citation: People v. Jaynes, 178 N.W.2d 558, 23 Mich.App. 360 (Mich. App. 1970)
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Donald Lee JAYNES, Defendant-Appellant
• Court: Court of Appeal of Michigan

Page 558

178 N.W.2d 558

23 Mich.App. 360

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Donald Lee JAYNES, Defendant-Appellant.

Docket No. 6800.

Court of Appeals of Michigan, Division No. 2.

April 27, 1970.

Released for Publication July 24, 1970.

William Patterson, Lapeer, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., John P. Spires, Pros. Atty., for plaintiff-appellee.

Before R. B. BURNS, P.J., and FITZGERALD and VAN DOMELEN, ^* JJ.

R. B. BURNS, Presiding Judge.

Defendant pleaded guilty to a charge of stealing a motor vehicle transmission valued at more than $100. M.C.L.A. § 750.356a (Stat.Ann.1954 Rev. § 28.588). The statute sets the maximum penalty at 5 years. Defendant was sentenced to four years probation with specified liberty limiting provisions which included no unauthorized driving of automobiles. He was also required to spend six months in the county jail. After serving the required six months in jail, defendant violated the vehicle provision which resulted in the revocation of his probation. The sentence imposed was 2 to 5 years. Defendant contends he is entitled to credit of 6 months on his sentence, otherwise he could possibly be subjected to a 5 1/2 year sentence which is beyond the statutory 5 year maximum.

This question is apparently one of first impression in this State.

M.C.L.A. § 771.3 (Stat.Ann.1970 Cum.Supp. § 28.1133) provides:

'As a condition of probation, the court may require the probationer to be imprisoned in the county jail * * * for not more than 6 months.'

M.C.L.A. § 771.4 (Stat.Ann.1954 Rev. § 28.1134) states:

'It is the intent of the legislature that the granting of probation to the one convicted shall be a matter of grace. * * * In case such probation order is terminated or revoked the court may proceed to sentence such probationer in the same manner and To the same penalty as it might have done if such probation order had never been made.' (Emphasis supplied).

The plain and unambiguous language used in the above controlling statutes clearly indicates a legislative intention to allow a court to impose the maximum penalty even though jail time has accumulated under a probationary order. When a defendant is given probation, he is not deprived of any of his rights without due process. Rather, he is given the additional privilege of avoiding the usual penalty of his crime by the payment of a sum of money and observance of other conditions. People v. Good (1938), 287 Mich. 110, 282 N.W. 920; People v. Marks (1954), 340 Mich. 495, 65 N.W.2d 698.

There is no miscarriage of justice, defendant's voluntary violation of...