People v. Lacy
| Decision Date | 24 July 1974 |
| Docket Number | Docket No. 18450,No. 3,3 |
| Citation | 221 N.W.2d 199,54 Mich.App. 471 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Earl LACY, Jr., Defendant-Appellant |
| Court | Court of Appeal of Michigan — District of US |
James R. Neuhard, State Appellate Defender, Detroit, for defendant-appellant.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Gary A. Stewart, Pros. Atty., for plaintiff-appellee.
Before J. H. GILLIS, P.J., and ALLEN and ELLIOTT,* JJ.
The single issue presented in this appeal is whether good time spent on probation must be deducted from a sentence of 2 to 4 years in prison imposed following a probation revocation hearing. Detailed facts follow.
On December 6, 1971, defendant pled guilty to the charge of larceny in a building. M.C.L.A. § 750.360; M.S.A. § 28.592. January 3, 1972, he received a sentence of 2 years probation and was ordered to pay restitution. Defendant violated the terms of his probation by being convicted on March 21, 1972, of driving a vehicle without an operator's license. He was also convicted of being a disorderly person on April 5, 1972. M.C.L.A. § 750.167; M.S.A. § 28.364. A probation revocation hearing was held April 21, 1972, and on May 1, 1972, defendant was committed to the Allegan County jail for 120 days with credit applied to that sentence for 32 days previously served. After such sentence, defendant's probation remained in effect.
Subsequent to his release, defendant was convicted on December 27, 1972, of receiving or concealing stolen property under $10. M.C.L.A. § 750.535; M.S.A. § 28.803. A probation revocation hearing was held January 15, 1973, and on February 5, 1973, defendant received a sentence of 2 to 4 years in prison. Defendant received credit for 32 days previously spent in jail pursuant to his first arrest, the 120 days served in jail after his 1972 revocation hearing, and 12 days spent in jail between the 1973 revocation hearing and the time defendant was able to obtain bond before being sentenced. Defendant has appealed, and argues that he is entitled to credit for all the time that he was on probation.
Defendant's initial contention is that because he was not given credit for time served on probation, he has been punished twice, and that this violates the constitutional provisions against double jeopardy. U.S.Const., Am. V, and Const. 1963 art. 1, § 15. It has been said that '(t)he prohibition (against double jeopardy) is not against being twice punished, but against being twice put in jeopardy'. United States v. Ball, 163 U.S. 662, 669, 16 S.Ct. 1192, 1194, 41 L.Ed. 300, 302 (1896). People v. Fick, 45 Mich.App. 435, 437, 206 N.W.2d 739, 741 (1971), stated that one of the tenets of the prohibition against double jeopardy is that one 'may not be reprosecuted in order to impose upon him another sentence for the same offense'. Was defendant 'reprosecuted' and 'twice put in jeopardy' when the trial court failed to grant defendant credit for time spent on probation against a prison sentence imposed after the revocation of that probation?
Our own Court and other jurisdictions, both state and Federal, have uniformly answered this question 'no'. In People v. Westman, 53 Mich.App. 662, 220 N.W.2d 169 (1974), this Court held the trial court did not err in failing to credit a jail sentence with time spent on probation. See also People v. Jaynes, 23 Mich.App. 360, 178 N.W.2d 558 (1970). State v. Tritle, 15 Ariz.App. 325, 326, 488 P.2d 681, 682 (1971), said that the time spent on probation is not punishment to be credited against one's sentence upon revocation of that probation. United States v. Fultz, 482 F.2d 1, 4 (C.A. 8, 1973) first noted that despite the language in Korematsu v. United States, 319 U.S. 432, 63 S.Ct. 1124, 87 L.Ed. 1497 (1943), that probation is 'an authorized mode of mild and ambulatory punishment, the probation being intended as a reforming discipline', a defendant is not placed in double jeopardy by failure to credit good time spent on probation. Thomas v. United States, 327 F.2d 795, 797 (C.A. 10, 1964), referring to other Federal cases, held that the sentencing upon revocation of probation, without giving defendant credit for the time he spent on probation, 'does not place the defendant in double jeopardy'.
Defendant next argues that applying credit for time spent on parole while failing to give credit for the time spent on probation is a violation of the constitutional guarantee of equal protection of the laws. U.S.Const., Am. XIV, and Const.1963, art. 1, § 2. 1 In support of this contention, defendant relies on Gagnon v. Scarpelli, 411 U.S. 778, 782, 93 S.Ct. 1756, 1760, 36 L.Ed.2d 656, 662 (1973), and Warren v. Parole Board, 23 Mich.App. 754, 766--767, fn. 22, 179 N.W.2d 664 (1970), app. dismissed, 383 Mich. 817 (1971). Gagnon observed that the revocation of probation, like the revocation of parole, resulted in a loss of liberty and held 'that a probationer, like a parolee, is entitled to a preliminary and final revocation hearing'. Warren noted that while there are technical differences between a paroled prisoner and a probationer, both are concerned, once accused of violating their respective conditional status, with 'the impending loss of their liberty' and held it would be unreasonable not to afford both persons similar procedural safeguards 'in the face of this common threat to a constitutionally protected interest--liberty'.
Because a fundamental interest is involved, we must determine whether or not the treatment afforded probationers, as far as the denial of credit against one's sentence is concerned, as distinguished from the treatment afforded parolees is 'necessary for the achievement of a 'compelling state interest". Governor v. State Treasurer, 389 Mich. 1, 25, 203 N.W.2d 457, 468 (1972). We find defendant's reliance upon Gagnon v. Scarpelli, Supra, unpersuasive. Although similar in nature, parole and probation are indeed different in a real sense. As indicated previously, one is placed on probation if the...
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People v. Gillman
...to be controlling and the trial judge's right to assess the maximum punishment provided by law was affirmed. In People v. Lacy, 54 Mich.App. 471, 474--476, 221 N.W.2d 199 (1974), the Court found the failure to [71 MICHAPP 387] credit a defendant for the time served on probation did not viol......
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State v. Lohnes
...need not be credited on a sentence imposed after revocation. Gehl v. People, 1967, 161 Colo. 535, 423 P.2d 332; People v. Lacy, 1974, 54 Mich.App. 471, 221 N.W.2d 199. This is true even where one of the conditions of probation includes some form of incarceration. State v. Fuentes, 1976, 26 ......
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People v. Jackson
...he should have received credit for time successfully served on probation were expressly rejected by our Court in People v. Lacy, 54 Mich.App. 471, 221 N.W.2d 199 (1974). We are in total accord with Judge Allen's opinion in People v. Lacy, supra, and decline to further discuss the issues.3 P......
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People v. Robinson
...Finally, our efforts to discern some valid policy for denying credit in this instance have proved fruitless. In People v. Lacy, 54 Mich.App. 471, 476, 221 N.W.2d 199 (1974), Judge Allen offered the following rationale for denying defendant's request for credit for the entire probationary pe......