People v. Redwine , 73 Mich. App. 83 ( 1976 )

M. F. Cavanagh, J.

Defendant pled guilty to attempted larceny in a building, MCLA 750.360; MSA 28.592, and was sentenced to a term of 23 to 24 months in prison. He does not appeal the conviction but only the sentence.

Defendant cites People v Tanner, 387 Mich 683; 199 NW2d 202 (1972), and claims that the sentence imposed violated the indeterminate sentencing act, MCLA 769.8; MSA 28.1080. The people disagree, arguing that the indeterminate sentencing act does not apply to habitual or multiple criminal offenders and rely on People v Ungurean, 51 Mich App 262; 214 NW2d 873 (1974), for the proposition that prior felony convictions preclude the defendant from claiming he is entitled to an indeterminate sentence in this case.

We are persuaded that Ungurean, supra, does not control for two reasons. First, here, unlike Ungurean, the defendant was not charged or convicted under the habitual criminal act, MCLA 769.12; MSA 28.1084. Secondly, the Supreme Court has applied Tanner to cases in which the defendant had committed prior felonies. In the case of People v Haggitt, 33 Mich App 95; 189 NW2d 842 (1971), the defendant had received a 14 year 11 month to 15 year sentence. This Court upheld the sentence on the basis of the "trial court’s discretion”, which could take into consideration the defendant’s prior record. People v Jordan, 33 Mich App 15; 189 NW2d 851 (1971), involved another prior felony offender who had received the same sentence as Haggitt. Judge Levin dissented in both Haggitt and Jordan on the grounds later adopted by the Supreme Court in Tanner. No one discussed the "first conviction” language in the sentencing statute, although Judge Levin argued that since the defendants had not been charged under the habitual criminal act, the sentence could not be upheld by reference to those sections. The Supreme Court reversed both Jordan and Haggitt, and remanded for sentencing in accord with Tanner. 388 Mich 773; 200 NW2d 321 (1972). The issue of prior convictions was never discussed.

Accordingly, defendant’s minimum sentence is modified to 16 months pursuant to GCR 1963, 820.1(7). See People v Duffy, 67 Mich App 266; 240 NW2d 771 (1976).

Affirmed as modified.

Bashara, P. J., concurred.