People v. Robinson

• Decision Date: 27 August 1980
• Docket Number: Docket No. 46333
• Citation: People v. Robinson, 299 N.W.2d 13, 99 Mich.App. 623 (Mich. App. 1980)
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Stanley Lee ROBINSON, Jr., Defendant-Appellant.
• Court: Court of Appeal of Michigan

Page 13

299 N.W.2d 13

99 Mich.App. 623

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Stanley Lee ROBINSON, Jr., Defendant-Appellant.

Docket No. 46333.

Court of Appeals of Michigan.

Aug. 27, 1980.

Released for Publication Dec. 9, 1980.

James R. Neuhard, State Appellate Defender, Terence R. Flanagan, Asst. State Appellate Defender, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., John Dennany, Pros. Atty., Leonard J. Malinowski, Asst. Atty. Gen., for plaintiff-appellee.

Before CYNAR, P. J., and KELLY and GILLESPIE, ^* JJ.

KELLY, Judge.

Defendant pled guilty to breaking and entering with intent to commit larceny contrary to M.C.L. § 750.110; M.S.A. § 28.305. On April 15, 1978, defendant was sentenced to four years probation, the initial six months to be served in the county jail. On April 12, 1979, defendant was arraigned for probation violations. Defendant waived counsel and tendered a plea of guilty to the charges of leaving the state without permission and changing his residence without proper notice to the probation office. Defendant was then sentenced to a term of 31/2 to 10 years imprisonment on the underlying breaking and entering conviction, following revocation of probation. Defendant was given credit for 13 days of incarceration prior to sentencing but received no credit for the six months imprisonment imposed as a condition of the probation order. Defendant appeals as of right the waiver of counsel at his revocation hearing and the credit time provision of his sentence.

Our examination of the record reveals no error with respect to defendant's waiver of counsel at the probation revocation hearing. We do, however, agree with defendant that he should receive sentence credit for the six months imprisonment served as a condition of probation.

Prior decisions of this Court that defendants are not entitled to such credit indicate an obligation to respect legislative intent as purportedly manifested in the probation statute which provides:

"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." M.C.L. § 771.4; M.S.A. § 28.1134,

and the presentence credit statute which states:

"Whenever any person is hereafter convicted of any crime within this state and has served any time in jail prior to sentencing because of being denied or unable to furnish bond for the offense of which he is convicted, the trial Court in imposing sentence shall specifically grant credit against the sentence for such time served in jail prior to sentencing." M.C.L. § 769.11b; M.S.A. § 28.1083(2). (Emphasis added). See People v. Sturdivant, 97 Mich.App. 711, 296 N.W.2d 157 (1980), People v. Jaynes, 23 Mich.App. 360, 178 N.W.2d 558 (1970).

Contrary to the position taken by the Jaynes Court and the Sturdivant majority, we do not read a bar to such credit in the probation statute. One may not logically infer from the fact that a probation violator may be sentenced to the same penalty that the court might originally have imposed that jail time credit on such sentence is prohibited.

An examination of the procedures followed in other jurisdictions with similar statutory schemes supports the contrary position. In both Florida and California, which refuse to grant credit for probation in general, a defendant is entitled to credit for jail time served as a condition of probation. Fla.Stat.Ann. 948.06, Hutchinson v. State, 360 So.2d 1160 (Fla.App.1978), Evans v. State, 356 So.2d 1355 (Fla.App.1978), Cal. Penal Codes §§ 1203.1-1203.3, People v. Ham, 44 Cal.App.3d 288, 295, 118 Cal.Rptr. 591 (1975). In Illinois, where it is within the discretion of the trial court to credit the entire period of probation against a sentence of imprisonment following revocation, 38 Ill.Ann.Stat. 1005-6-4(h), defendant is nevertheless entitled to credit for all jail time previously served for the underlying offense. 38 Ill.Ann.Stat. 1005-8-7(b). See People v. Dixon, 41 Ill.App.3d 910, 354 N.E.2d 638 (1976). Contra, Wisc.Stat.Ann. 973.10, State v. Wills, 69 Wis.2d 489, 230 N.W.2d 827 (1975).

Neither do we find a barrier to granting such credit under the terms of the sentence credit statute. Even though the language apparently restricts its application to time served in jail prior to sentencing due to the unavailability of bond, this Court has on several occasions demonstrated a willingness to construe it liberally. People v. Stange, 91 Mich.App. 596, 599, 283 N.W.2d 806 (1979). See Kaufman, J., dissenting in Sturdivant, supra. The instant case presents one more factual circumstance in which the credit statute should apply.

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 period upon revocation and sentencing:

"A person placed on probation has an obvious interest in avoiding incarceration. If credit were granted in a situation such as the instant one, trial courts might be reluctant to grant probation. The effectiveness of the tool for securing compliance with the terms of probation would be vitiated if credit were granted for time previously spent thereon. Were defendant to prevail, it would be a victory for defendant but a Pyrrhic victory for future defendants. A trial court could well be discouraged in the important and necessary exercise of discretion in sentencing defendants in a...