People v. Seaman, Docket Nos. 29466

• Decision Date: 04 May 1977
• Docket Number: 29467,Docket Nos. 29466
• Citation: 255 N.W.2d 680,75 Mich.App. 546
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Felix Donald SEAMAN, Defendant-Appellant. 75 Mich.App. 546, 255 N.W.2d 680
• Court: Court of Appeal of Michigan — District of US

Page 680

255 N.W.2d 680

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Felix Donald SEAMAN, Defendant-Appellant.

Docket Nos. 29466, 29467.

75 Mich.App. 546, 255 N.W.2d 680

Court of Appeals of Michigan.

May 4, 1977.

Released for Publication July 20, 1977.

[75 MICHAPP 547] Boeschenstein, Marietti, Mullally & Grimm, by William C. Marietti, Muskegon, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Gerald D. Warner, Prosecutor, for plaintiff-appellee.

[75 MICHAPP 548] Before D. E. HOLBROOK, P. J., and BASHARA and BOYLE ^*, JJ.

PER CURIAM.

Defendant entered pleas of nolo contendere to two charges of criminal sexual conduct in the third degree, along with being a sexually delinquent person, with the understanding that other charges pending against him would be dismissed, including the charge of criminal sexual conduct in the first degree. On May 20, 1976, judgments were entered in both cases. Defendant was sentenced to a term of ten years minimum and 15 years maximum on the first charge and to a term of one day to life on the second charge. Defendant now appeals as of right.

The only issue on appeal that we find of merit is defendant's contention that the sentence on the second charge was improper. Defendant was sentenced on this charge to one day to life apparently pursuant to M.C.L.A. § 767.61a; M.S.A. § 28.1001(1). That section provides in pertinent part:

"In any prosecution for an offense committed by a sexually delinquent person for which may be imposed an alternate sentence to imprisonment for an indeterminate term, the minimum of which is 1 day and the maximum of which is life, the indictment shall charge the offense and may also charge that the defendant was, at the time said offense was committed, a sexually delinquent person. * * * Upon a verdict of guilty to the first charge or to both charges or upon a plea of guilty to the first charge or to both charges the court may impose any punishment provided by law for such offense."

This section which is contained in the section of the criminal code dealing with proceedings before trial is not an authorization for a sentence of one [75 MICHAPP 549] day to life. The emphasized portions which provide "for which" are referring to the actual statutes that define the offense and fix the punishment. See M.C.L.A. § 750.335a; M.S.A. § 28.567(1), M.C.L.A. § 750.336; M.S.A. § 28.568, M.C.L.A. § 750.338; M.S.A. § 28.570, M.C.L.A. § 750.338a; M.S.A. § 28.570(1), M.C.L.A. § 750.338b; M.S.A. § 28.570(2). Each of these laws is concerned with indecency and immorality. In addition to defining the offense, each statute prescribes the additional penalty of one day to life that may be imposed if a person so charged is found to be sexually delinquent. The authority for this sentence, therefore, is not found in M.C.L.A. § 767.61a, but is found in each of the individual statutes.

Defendant was charged with violating M.C.L.A. § 750.520d; M.S.A. § 28.788(4). The penalty prescribed therein is a 15-year maximum period of imprisonment. There is no provision for sentence in the event of a supplementary charge of sexual delinquency as is found in the previously mentioned statutes. Furthermore, M.C.L.A. § 750.10a; M.S.A. § 28.200(1), referred to by the court at sentencing merely defines the term sexually delinquent person. In the absence of statutory authority the only possible sentence was that provided for in M.C.L.A. § 750.520d, that is, a 15-year maximum. Furthermore, the new criminal sexual conduct code, 1974 P.A. 266; M.C.L.A. § 750.520a, et seq.; M.S.A. § 28.788(1) et seq., only provides for a life sentence for a conviction of first-degree criminal sexual conduct, M.C.L.A. § 750.520b. The court herein had no authority to impose a sentence of one day to life upon conviction of third-degree criminal sexual conduct.

Another issue raised on appeal is the failure of the prosecution to allege in the information that the charge on the second offense herein was a second offense subjecting the defendant to a mandatory[75 MICHAPP 550] minimum sentence of five years. See People v. Bosca, 25 Mich.App. 455, 181 N.W.2d 678 (1970). Because we have vacated the sentence we need not decide this issue and reserve judgment on said issue until it is properly before this Court.

Defendant also contends that the trial court failed to sufficiently state why a nolo contendere plea was appropriate herein. Defendant entered pleas of nolo contendere on both charges herein in immediate succession to each other in arraignment proceedings, defendant having stood mute at the original arraignment on this information.

During the plea proceeding on the first charge counsel for defendant indicated that although there was no reluctance...