People v. Leonard

• Decision Date: 17 January 1974
• Docket Number: No. 2,Docket No. 17908,2
• Citation: People v. Leonard, 214 N.W.2d 888, 51 Mich.App. 368 (Mich. App. 1974)
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. David M. LEONARD, Defendant-Appellant
• Court: Court of Appeal of Michigan

Page 888

214 N.W.2d 888

51 Mich.App. 368

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. David M. LEONARD, Defendant-Appellant.

Docket No. 17908.

Court of Appeals of Michigan, Division No. 2.

Jan. 17, 1974.

Released for Publication Feb. 19, 1974.

Rehearing Denied Feb. 25, 1974.

Leave to Appeal Denied May 15, 1974.

Sheldon G. Larky, Leib & Leib, Southfield, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., L. Brooks Patterson, Pros. Atty., for plaintiff-appellee.

Before J. H. GILLIS, P.J., and R. B. BURNS and CAMPBELL,* JJ.

R. B. BURNS, Judge.

Defendant was arrested and charged with assaulting a police officer in the discharge of his duty. M.C.L.A. § 750.479; M.S.A. § 28.747. He pleaded guilty to the added second count of attempted resisting arrest.

Defendant was sentenced to one year in the Oakland County Jail, less 87 days credit for time served awaiting sentence.

Defendant claims the trial court erred by not setting a minimum and maximum sentence in accordance with M.C.L.A. § 769.8; M.S.A. § 28.1080.

The statute which the defendant was originally charged with violating provided a maximum sentence of two years imprisonment.

M.C.L.A. § 750.92; M.S.A. § 28.287 sets forth the penalties for persons convicted of attempting to commit crimes, when no express provision is made by law for such punishment. The statute provides that imprisonment cannot exceed 1/2 of the time that could be imposed for the completed act.

Therefore, defendant's maximum confinement would be for one year.

M.C.L.A. § 769.28; M.S.A. § 28.1097(1), provides that the commitment of any person for a crime to imprisonment for a maximum of one year or less, should be made to the county jail of the county in which such person was convicted.

People v. Woods (Docket No. 14873, decided November 5, 1973 (unreported)), held that People v. Tanner, 387 Mich. 683, 199 N.W.2d 202 (1972), was not applicable to misdemeanor sentences to the county jail. We hold that M.C.L.A. § 769.8; M.S.A. § 28.1080 is not applicable to misdemeanor sentences to a county jail.

GCR 1963, 785.7(2) as amended, states in part:

'If the tendered plea is the result of an agreement between the prosecutor and the defendant or his lawyer regarding the entry of a plea, the agreement shall be stated on the record and affirmatively acknowledged by the defendant, His lawyer and the prosecutor.' (Emphasis added.)

Defendant claims error was committed in accepting his guilty plea without obtaining the affirmative acknowledgment of both the prosecutor and the defense attorney that they had entered into an agreement with the defendant to have defendant enter such a plea.

The record shows that the defendant acknowledged the agreement between the parties, but the record does not show such acknowledgment by the prosecutor and defense counsel.

It should be noted that the court rule, as amended, became effective June 1, 1973, and the plea was taken June 4, 1973.

The case is remanded to the trial court to ascertain from the prosecutor and defense counsel whether or not the plea, as entered, correctly reflects the negotiated agreement between the parties.

J. H. GILLIS, Presiding Judge (concurring in part, dissenting in part).

I concur in the majority...