People v. Larkins, Docket Nos. 73914

• Decision Date: 12 July 1985
• Docket Number: 73915,74440,Docket Nos. 73914
• Citation: 369 N.W.2d 882,142 Mich.App. 679
• Court: Court of Appeal of Michigan — District of US
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Ricky C. LARKINS, Defendant-Appellee. PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Stephen JETER, Defendant-Appellee. PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Erik BARNES, Defendant-Appellee. 142 Mich.App. 679, 369 N.W.2d 882

Page 882

369 N.W.2d 882

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Ricky C. LARKINS, Defendant-Appellee.

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Stephen JETER, Defendant-Appellee.

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Erik BARNES, Defendant-Appellee.

Docket Nos. 73914, 73915, 74440.

142 Mich.App. 679, 369 N.W.2d 882

Court of Appeals of Michigan.

Submitted Jan. 15, 1985.

Decided March 20, 1985.

Released for Publication July 12, 1985.

[142 MICHAPP 680] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., John D. O'Hair, Pros. Atty., Edward Reilly Wilson, Chief Appellate Asst. Pros. Atty., and Carolyn Schmidt, Asst. Pros. Atty., for the People.

Robert E. Slameka, Detroit, for Ricky C. Larkins.

Norman R. Robiner, Detroit, for Stephen Jeter.

Robert L. McClinton, Detroit, for Erik Barnes.

Before T.M. BURNS, P.J., and V.J. BRENNAN and PORTER, ^* JJ.

PER CURIAM.

Following a bench trial, defendants, Ricky C. Larkins, Stephen Jeter, and Erik Barnes, were convicted of armed robbery, M.C.L. Sec. 750.529; M.S.A. Sec. 28.797. Each defendant was sentenced to a term of 5 years' probation with the first 90 days to be served in jail. The prosecutor now appeals the sentences imposed by the trial court.

A prosecutor has no right to appeal outside the express provisions of M.C.L. Sec. 770.12; M.S.A. Sec. 28.1109. People v. Cooke, 419 Mich. 420, 355 N.W.2d 88 (1984). Since the Legislature provided no express authorization for appeals by the prosecution from sentences, valid or invalid, the prosecution has no authority to appeal the trial court's sentencing order in this case. People v. Wilkins, 121 Mich.App. 813, 816, 329 N.W.2d 500 (1982). Nevertheless, because we are persuaded that review is clearly warranted in this case, we exercise our discretionary authority under GCR 1963, 820.1(7) and consider the prosecution's claim of appeal as a complaint for an order of superintending control. GCR 1963, 711.4(a). Placing defendants on probation was a void act since the lower court had no statutory[142 MICHAPP 681] authority to do so. People v. Davis, 392 Mich. 221, 226-227, 220 N.W.2d 452 (1974). See also M.C.L. Sec. 771.1(1); M.S.A. Sec. 28.1131(1). Since the purported placing of defendants on probation was a nullity, the matter with respect to each defendant returns to the status quo ante. As a consequence, each sentence is reversed with a remand to the lower court for new sentencing.

Reversed and remanded.

* William A. Porter, 46th Judicial Circuit Judge, sitting on Court of Appeals by assignment pursuant to Const.1963, Art. 6, Sec. 23, as amended 1968.