People v. Slocum , 213 Mich. App. 239 ( 1995 )

213 Mich. App. 239 (1995) 539 N.W.2d 572

PEOPLE
v.
SLOCUM

Docket Nos. 164010, 164538.

Michigan Court of Appeals.

Submitted July 13, 1995, at Grand Rapids. Decided September 5, 1995, at 9:00 A.M.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Larry J. Burdick, Prosecuting Attorney, and Jonathan C. Pierce and Catherine Langevin Semel, Assistant Attorneys General, for the people.

State Appellate Defender (by Ronald E. Steinberg), for the defendant on appeal.

Before: DOCTOROFF, C.J., and NEFF and CONNOR, JJ.

PER CURIAM.

In Docket No. 164010, defendant was convicted by a jury of carrying a concealed weapon, MCL 750.227; MSA 28.424, and of being an habitual offender, second offense, MCL 769.10; MSA 28.1082. Defendant was sentenced to 3 1/2 to 7 1/2 years' imprisonment. In Docket No. 164538, defendant pleaded guilty of absconding on or forfeiting bond, MCL 750.199a; MSA 28.396(1), and of being an habitual offender, second offense, MCL 769.10; MSA 28.1082, and was sentenced to 2 1/2 to 6 years' imprisonment, to run concurrently with the sentence in Docket No. 164010. Defendant appeals as of right, and we affirm in part, vacate an order of costs against the defendant, and remand.

I

We first consider defendant's contention that he was denied a fair trial by various instances of misconduct by the prosecutor. We disagree.

Defendant has failed to preserve these issues by not objecting to the alleged misconduct below. People v Gonzalez, 178 Mich. App. 526, 534-535; 444 NW2d 228 (1989). Thus, appellate review is precluded absent a miscarriage of justice. Id.

After a careful review of the record, we conclude that no miscarriage of justice will result from our refusal to review this case. Any possible prejudice from the alleged misconduct could have been cured by a timely objection and cautionary instruction. Id. at 535.

II

Next, we have reviewed defendant's sentences and find them to be proportionate to his crimes. People v Milbourn, 435 Mich. 630; 461 NW2d 1 (1990).

However, because both parties agree that defendant is entitled to a Tucker^[1] hearing, we remand this case to allow such a hearing to take place.

III

Also, on remand, we direct the trial court to allow defendant to make a testimonial record to determine if he was denied effective assistance of counsel. See People v Ginther, 390 Mich. App. 436; 212 NW2d 922 (1973). Defendant's proofs on remand are limited to the issue raised in his appellate brief in Docket No. 164010.

IV

Finally, defendant argues that the trial court improperly ordered him to pay $250 in costs in Docket No. 164010 and for the cost of extradition from Florida in Docket No. 164538. We agree.

A trial court may require a convicted felon to pay costs only where such requirement is expressly authorized by statute. People v Jones, 182 Mich. App. 125, 126; 451 NW2d 525 (1989).

A

In Docket No. 164010, the trial court cited no authority, and we know of none, that would allow the imposition of $250 in costs for carrying a concealed weapon. Accordingly the order imposing that fine is vacated.

B

With regard to defendant's extradition costs, MCL 780.23; MSA 28.1285(23) provides that the county in which the crime is alleged to have been committed is required to pay for the extradition costs. The prosecutor, however, argues that the recently amended restitution statute provides the court with the authority to order defendant to pay for those costs. MCL 780.766; MSA 28.1287(766). Thus, the prosecutor argues for a remand to determine whether the trial court will require restitution under the new statute.

The prosecutor acknowledges, however, that MCL 780.766; MSA 28.1287(766) was amended to include governmental agencies after defendant's conviction, but argues that the statute only governs procedural matters and thus may be applied retroactively. We disagree.

The test for determining whether a criminal law violates the Ex Post Facto Clause of our Constitution, Const 1963, art 1, § 10, involves two elements: (1) whether the law is retrospective, i.e. whether it applies to events that occurred before its enactment, and (2) whether it disadvantages the offender, People v Davis, 181 Mich. App. 354, 357; 448 NW2d 842 (1989). A statute disadvantages an offender if (1) it makes punishable that which was not, (2) it makes an act a more serious offense, (3) it increases a punishment, or (4) it allows the prosecutor to convict on less evidence. People v Harvey, 174 Mich. App. 58, 60; 435 NW2d 456 (1989), quoting People v Moon, 125 Mich. App. 773, 776; 337 NW2d 293 (1983). Further, the Ex Post Facto Clause does not apply to legislative control of remedies and modes of procedure that do not affect matters of substance. Davis, supra at 358.

Examining the law here in question, it is clear that the amendment would make the statute apply to defendant's extradition, and that action occurred before the amendment of the statute. Thus, it must only be determined whether applying the statute to defendant would disadvantage him.

In People v Peters (After Remand), 205 Mich. App. 312, 319; 517 NW2d 773 (1994), rev'd on other grounds 449 Mich. 515; 537 NW2d 160 (1995), this Court determined that restitution is a form of punishment. Thus, the amendment of MCL 780.766; MSA 28.1287(766), by increasing the amount of restitution for which defendant would be responsible, would increase his punishment. Application of the statute in this case, therefore, would be in violation of the Ex Post Facto Clause.

Accordingly, we vacate the trial court's order requiring defendant to pay the costs of his extradition.

Defendant's convictions and sentences are affirmed subject to the proceedings on remand. The orders imposing costs are vacated as set forth above. We do not retain jurisdiction.

NOTES

[1] United States v Tucker, 404 U.S. 443; 92 S. Ct. 589; 30 L. Ed. 2d 592 (1972).