Petition of Callahan

• Decision Date: 28 February 1957
• Docket Number: No. 262,262
• Citation: 81 N.W.2d 669,348 Mich. 77
• Parties: In the Matter of the Petition of Donald E. CALLAHAN.
• Court: Michigan Supreme Court

Page 669

81 N.W.2d 669

348 Mich. 77

In the Matter of the Petition of Donald E. CALLAHAN.

No. 262.

Supreme Court of Michigan.

Feb. 28, 1957.

Donald E. Callahan, in pro. per.

Edmund E. Shepherd, Lansing, for the People.

Before the Entire Bench.

DETHMERS, Chief Justice.

Having allowed habeas corpus and the ancillary writ of certiorari, we proceed to inquire into the legality of plaintiff's continued imprisonment.

Four times plaintiff was convicted of felonies, the last three committed while on parole. His third conviction was of robbery armed for which sentence was imposed on September 30, 1931, of imprisonment for 15 to 50 years. While on parole from that sentence he again committed the crime of robbery armed for which he was sentenced on July 5, 1940, to a prison term of 10 to 30 years. It is defendant's contention that under P.A.1937, No. 255, ch. 3, § 8, C.L.S.1940, § 17543-48, Stat.Ann.1946 Cum.Supp. § 28.2108, plaintiff was required to serve the remainder of the 1931 sentence before he could begin to serve the 1940 sentence; that the 1931 sentence was suspended on February 2, 1953, and that, accordingly, plaintiff began serving his 1940 sentence as of that date and that, therefore, the 1940 sentence has not yet been fully served and plaintiff is not entitled to release.

Plaintiff contends that the 1937 act was unconstitutional and violative of Const.1908, art. 4, § 2, because it provided for invasion of the judicial province by an agency of the administrative branch of government in that it permitted the parole board to order a judicially imposed sentence to commence, contrary to the terms of the mittimus, at a date later than its imposition, namely, after his prior sentence had been served. On the basis of that claim of unconstitutionality plaintiff says that his 1940 sentence began to run when imposed, that the minimum of his 10 to 30 year term has expired and that, if due credit be given for applicable good time allowances, even the maximum was fully served by July 5, 1955.

The legislature has exclusive power to determine the length of imprisonment for a felony. That power is not subject to judicial supervision, the function of the court being only to impose sentence under and in accord with the statute. In re Doelle, 323 Mich. 241, 35 N.W.2d 251; People v. Harwood, 286 Mich. 96, 281 N.W. 551, and cases therein cited. In so doing the court performs a ministerial function with discretion confined to the limits permitted by the statute. In re Duff, 141 Mich. 623, 105 N.W. 138; In re Evans, 173 Mich. 25, 138 N.W. 276. Accordingly, the provision of the act here in question, providing that a sentence for a felony committed while on parole shall commence at the expiration of service of the prior sentence, is within the legislative power and not violative of those conferred by the Constitution on the judicial branch of government. Nor may it be said that the statute bestows a judicial function on the parole board. Its order suspending commencement of the 1940 sentence until the 1931 sentence has been served was unnecessary because the suspension was automatic under the statute. Deferment of service of the 1940 sentence was not occasioned by the action of the parole board but by the mandatory provision of the statute. Canfield v. Commissioner of Pardons and Paroles, 280 Mich. 305, 273 N.W. 578. That statute must be read into the 1940 sentence. In re Duff, supra. Anything in the sentence to the contrary was surplusage and a nullity. In re Evans, supra. We are not impressed by plaintiff's contention that the legislature evidenced a recognition of the unconstitutionality of the 1937 act by repeal of the provision in question and enactment of P.A.1954, No. 100*, which provides that the sentencing judge may determine whether the second sentence shall commence forthwith or after expiration of the term of the pervious sentence. There is no authority for that theory. At all events, courts determine questions of constitutionality and we hold the 1937 act valid. It follows that plaintiff is not entitled to release under the 1940 sentence on the theory that it began running as of the date of its imposition and expired not later than July 5, 1955.

We come to consideration of a more serious problem. Plaintiff urges that he is entitled to release under P.A.1953, No. 232, §§ 34 and 38, C.L.S.1954, §§ 791.234, 791.238, Stat.Ann.1954 Rev. §§ 28.2304, 28.2308. Section 38 provides in part:

'Any prisoner committing a crime while at large upon parole and being convicted and sentenced therefor shall be treated as to the last incurred term, as provided under section 34 of this act.'

Section 34 provides in part:

'Every prisoner sentenced to an indeterminate sentence and confined in a state prison or reformatory, when he has served a period of time equal to the minimum sentence imposed by the court for the crime of which he was convicted, less allowances made for good time and special good time, shall be subject to the jurisdiction of the parole board.

'In case the prisoner is sentenced for consecutive terms, whether received at the same time or at any tiem during the life of the original sentence, the parole board...