People v. Cohen , 35 Mich. App. 706 ( 1971 )

35 Mich. App. 706 (1971) 192 N.W.2d 652

PEOPLE
v.
COHEN

Docket Nos. 10727, 10728.

Michigan Court of Appeals.

Decided September 23, 1971.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Donald A. Burge, Prosecuting Attorney, and Robert L. Pangle, Chief Appellate Attorney, for the people.

I. Goodman Cohen and Michael S. Friedman, for defendant on appeal.

Before: T.M. BURNS, P.J., and FITZGERALD and HOLBROOK, JJ.

PER CURIAM.

This case questions the allowance of credit for time served in jail prior to sentence.^[1]

On November 1, 1968, and on June 9, 1969, defendant was arrested in Kalamazoo, Michigan, on drug violations. MCLA 1971 Cum Supp § 335.106 (Stat Ann 1971 Cum Supp § 18.1106). In each case bonds were furnished and defendant was released.

Between the first and second Kalamazoo arrests, on January 30, 1969, the defendant while free on bond was arrested by Federal agents and charged with conspiracy and sale of LSD.

A guilty plea was entered on the Federal charge and on June 22, 1970, defendant began serving his sentence of a year and a day.

On August 24, 1970, defendant was before the Kalamazoo court on a writ of habeas corpus to answer the pending charges. Defendant entered a plea of guilty in each of these cases. Sentencing was set for October 12, 1970.

On November 16, 1970, after two postponements, defendant was sentenced from one year, nine months to two years in both cases. The only credit allowed against these sentences was two days for time spent in local custody shortly after his arrest. Both sentencing judges refused to credit defendant with the time spent in Federal detention.

The two issues on appeal are:

1. Was it proper to fail to credit defendant with time spent in Federal custody from July 22, 1970, to November 16, 1970, when defendant was sentenced in the Kalamazoo Court?

2. Were defendant's constitutional rights violated by the trial court's delay in sentencing?

Close adherence to statutory words and phrases would make both the prosecutor and the trial judges correct in refusing credit time while the bonds were in effect and when they were for offenses of which defendant was later convicted.

But, the cases do not apply, nor do they advocate strict or rigid construction. The rule stated is: This statutory provision is remedial and should be liberally construed and effectuate the salutary purpose sought to be achieved by the Legislature in its enactment. People v. Chattaway (1969), 18 Mich App 538; People v. Havey (1968), 11 Mich App 69; People v. Hall (1969), 19 Mich App 95, 100; People v. Haines (1970), 24 Mich App 240.

In Havey the Court stated, at p 82:

"Statutes relating to the computation of time served under a sentence, and allowance of credit thereon for time served under particular circumstances, were designed to confer a benefit on the person lawfully detained, and may not be interpreted to his detriment. 24B CJS, Criminal Law, § 1995(4), p. 641."

In this case Federal imprisonment was a lawful detention and a detrimental freedom-interfering particular circumstance for which credit is allowed. See In re Evans (1969), 18 Mich App 426, 430, 431.

In the Chattaway case, the Court held, at p 542:

"The construction of the statute which the people seek is in conflict with the legislative purpose as that construction would chill exercise of the right to a trial by an accused person who, like the defendant, faces more than one untried charge."

We hold that it is not the statutory intent to require an accused to plead guilty at the earliest opportunity or to run the risk of spending additional time in custody.

This case is remanded to the Kalamazoo Circuit Court with instructions to credit the defendant with the days spent in Federal confinement. Our decision obviates consideration or discussion of defendant's second issue.

NOTES

[1] MCLA § 769.11b (Stat Ann 1971 Cum Supp § 28.1083[2]). "Whenever any person is hereafter convicted of any crime within this state and has served any time in jail prior to sentencing because of being denied or unable to furnish bond for the offense of which he is convicted, the trial court in imposing sentence shall specifically grant credit against the sentence for such time served in jail prior to sentencing."