People v. Walker, Docket No. 76085
| Decision Date | 29 August 1985 |
| Docket Number | Docket No. 76085 |
| Citation | 372 N.W.2d 596,143 Mich.App. 479 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Sam WALKER, Jr., Defendant-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
Elliot D. Margolis, Detroit, for defendant.
Before WAHLS, P.J., and BRONSON and T.C. MEGARGLE, * JJ.
On September 30, 1983, defendant was convicted as charged with unlawfully driving away an automobile. M.C.L. Sec. 750.413; M.S.A. Sec. 28.645. On October 12, 1983, he was sentenced to a term of one to five years in prison, to run consecutively to a sentence defendant was then serving. Defendant appeals as of right and contends that he was entitled to concurrent sentencing. We agree.
At sentencing in the instant case, defense counsel noted for the record that defendant was then serving time for a parole violation. Subsequently, the court, in reviewing defendant's prior record, observed that defendant had "violated his parole and [was] back again". The court referred to defendant as being "out on parole and in inmate status". The statements made at sentencing persuade us to accept defendant's assertion that he was on parole at the time he committed the UDAA offense. The question is whether he, as a parolee, was "incarcerated" at that time within the meaning of the consecutive sentencing statute, M.C.L. Sec. 768.7a; M.S.A. Sec. 28.1030(1).
The statute provides in part:
This Court has consistently read this statutory provision as in pari materia with M.C.L. Sec. 750.193(2); M.S.A. Sec. 28.390(2), which defines "prison" liberally. See People v. Lakin, 118 Mich.App. 471, 474, 325 N.W.2d 460 (1982), People v. Shirley Johnson, 96 Mich.App. 84, 86, 292 N.W.2d 489 (1980), and People v. Mayes, 95 Mich.App. 188, 290 N.W.2d 119 (1980). Thus, one who commits a crime even while on authorized leave from a half-way house does so while "incarcerated" and is subject to consecutive sentencing. Mayes, supra.
The statute does have its limits, though, as recognized by this Court in Lakin, supra. In that case, defendant was on "extended furlough" when he committed a felony. This Court concluded,
"Since defendant was not on 'parole' status, but 'pre-parole' status at the time he committed the offense, he was subject to the consecutive sentencing statute." 118 Mich.App. 474, 325 N.W.2d 460.
The clear implication of the Court's statement is that a parolee is not subject to the consecutive sentencing statute. While dicta on the facts of Lakin, we accept it as the correct interpretation of the statute.
We find support for our interpretation in People v. Sanders, 130 Mich.App. 246, 343 N.W.2d 513 (1983). That case involved the question of whether defendant was an inmate for purposes of the 180-day rule, M.C.L. Sec. 780.131; M.S.A. Sec. 28.969(1). This Court relied on the holdings in the consecutive-sentencing cases in determining "inmate" status under the 180-day rule and concluded;
"We find that in the parole context the 180-day rules applies only where a person is...
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People v. Miller
...term imposed for that crime should be served consecutively to the unexpired time from any prior conviction. In People v. Walker, 143 Mich.App. 479, 372 N.W.2d 596 (1985), this Court held that a parolee is not subject to incarceration for purposes of that section of the statute and hence, th......
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Wayne County Prosecutor v. Department of Corrections
...with the continued viability of §§ 34(2) and 38(5). It is clear that the Legislature enacted § 7a(2) in response to People v. Walker, 143 Mich.App. 479, 372 N.W.2d 596 (1985). There the Court of Appeals held that a parolee was not subject to consecutive sentencing for a crime committed whil......