People v. Wilson , 111 Mich. App. 770 ( 1981 )

M. J. Kelly, J.

(dissenting). I respectfully dissent. It is well settled that once a valid sentence has been set, it cannot be changed by the trial court. People v Meservey, 76 Mich 223, 226; 42 NW 1133 (1889), People v Johnson, 60 Mich App 371, 373; 230 NW2d 438 (1975). An exception to this rule exists where the sentencing court errs by sentencing defendant to a maximum term less than that required by the sentencing statute. In re Pardee, 327 Mich 13, 17-18; 41 NW2d 466 (1950), cert den 339 US 961 (1950), In re Duff, 141 Mich 623, 625; 105 NW 138 (1905). The reason for this exception is that the sentencing court does not have any discretion in setting the maximum sentence. Pardee, supra, 17-18, Duff, supra, 624. The sentencing judge is required to sentence defendant to the maximum sentence established by statute. Pardee, supra, 17-18, Duff, supra, 625.

However, the converse is not true when sentencing defendant to a minimum sentence. Fixing a minimum sentence is left to the sentencing court’s discretion so long as the sentence complies with MCL 769.8; MSA 28.1080 and the rule established in People v Tanner, 387 Mich 683, 690; 199 NW2d 202 (1972). People v Means, 49 Mich App 570, 573; 212 NW2d 288 (1973). A one-year sentence for the crime of larceny in a building is valid. People v Haymond, 74 Mich App 632, 633; 255 NW2d 3 (1977). Once a valid minimum sentence is imposed, I do not feel that the sentencing judge can change the sentence just because an incorrect maximum sentence was given. As a practical matter, a maximum sentence means little; the minimum is the vital sentence.

I do not find the majority’s reliance on Pardee, supra, persuasive. In Pardee, defendant pled guilty to uttering and publishing a forged check with the intent to defraud, MCL 750.249; MSA 28.446, and was sentenced as a third-time felony offender under MCL 769.11; MSA 28.1083. He was sentenced to 10 to 20 years imprisonment. Later, the trial court was required to resentence the defendant because the sentence did not meet the requirements of MCL 769.11; MSA 28.1083. Under the statute as it was written at the time, the trial judge was required to sentence the defendant to a term not less than the longest term nor more than twice the longest term prescribed by law for a first conviction of such offense. Pursuant to the statute, the trial judge was required to change both the minimum and maximum sentence given to'defendant. The trial judge in Pardee did not have any discretion to set a lower minimum sentence as he did in this case.

The trial judge gave defendant a valid minimum sentence during the first sentencing procedure. While he was required to change the maximum sentence, he was not forced to change the minimum. Because the minimum sentence was valid, I would reinstate the defendant’s original minimum sentence.