People v. Yearrell , 101 Mich. App. 164 ( 1980 )

101 Mich. App. 164 (1980) 300 N.W.2d 483

PEOPLE
v.
YEARRELL

Docket No. 45059.

Michigan Court of Appeals.

Decided October 24, 1980.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, and Paul G. Bruno, Assistant Prosecuting Attorney, for the people.

Ashford, Cannon, Lumumba & Shakoor, for defendant on appeal.

Before: BASHARA, P.J., and N.J. KAUFMAN and R.M. MAHER, JJ.

PER CURIAM.

Defendant was convicted in a jury trial of armed robbery, MCL 750.529; MSA 28.797, and appeals.

Defendant first contends that the trial court erred in denying defendant's motion to suppress evidence of certain prior convictions. Our review indicates that the trial judge exercised his discretion in ruling on the motion, relying on People v Bennett, 85 Mich App 68; 270 NW2d 709 (1978). In the instant case, none of the prior convictions were for armed robbery, and each of the larcenous offenses reflected defendant's character. There was no abuse of discretion. See also People v Worden, 91 Mich App 666; 284 NW2d 159 (1979).

Defendant also argues that the examining magistrate erred by amending the charge. The amendment was made during the preliminary examination. It was amended as a result of evidence adduced during the testimony. Defendant's right to a preliminary examination on the added charge has not been jeopardized. People v Erskin, 92 Mich App 630; 285 NW2d 396 (1979). MCL 767.76; MSA 28.1016.

The claim that there was insufficient evidence to bind defendant over for trial is likewise without merit. There was evidence presented that defendant accompanied the principal throughout the commission of the crime and that he drove the car away from the scene. The magistrate acted properly in binding defendant over for trial. People v Palmer, 392 Mich 370; 220 NW2d 393 (1974).

Our review of the record clearly indicates that the prosecutor's closing remarks do not warrant reversal. So long as the argument is based upon the evidence and does not call upon a jury to decide a case based upon the prestige of the prosecutor's office, the words "I believe" or "I want you to convict" are not improper. People v Cowell, 44 Mich App 623; 205 NW2d 600 (1973).

Defendant's final argument is that the sentence of 7-1/2 to 10 years violates the indeterminate sentence act as mandated by People v Tanner, 387 Mich 683; 199 NW2d 202 (1972). A reading of the transcript provided to counsel and the Court indicates that defendant was in fact sentenced to 7-1/2 to 10 years rather than 6-1/2 to 10 years as required by Tanner.

However, the prosecutor counters that a supplemental proceeding of the defendant's sentencing had not yet been transcribed. We have now received the transcript of the "supplemental" proceeding. We are at a loss to understand how the transcription of the two hearings could be, word for word, exactly similar until the prosecutor reminds the court that the sentence should be corrected to reflect 7-1/2 to 15 years rather than 7-1/2 to 10 years, which the judge acts upon.

In view of the foregoing, we remand the matter to the trial judge. If a review of his own notes, the court file and the recollection of the parties involved convinces him that he, in fact, sentenced defendant to 7-1/2 to 15 years, then he shall so state on the record and defendant's conviction is affirmed. If, on the other hand, the court is convinced that defendant was sentenced to 7-1/2 to 10 years, his sentence shall be modified to 6-1/2 to 10 years. If the court is unsure, then the sentence shall be vacated and defendant shall be resentenced.

Defendant's conviction is affirmed. The matter is remanded for proceedings consistent with this opinion. We retain no further jurisdiction.

N.J. KAUFMAN, J. (dissenting).

I respectfully dissent. I share the majority's incredulity at the similarities between the two sentencing transcripts. In reviewing these documents, I am also concerned that the "amended" transcript embodies proceedings which apparently occurred two hours prior to the "original" proceedings. Whatever the reasons for these anomalies, I feel that they should not inure to the detriment of the defendant. Since the sentence of 7-1/2 to 10 years was improper under People v Tanner, 387 Mich 683; 199 NW2d 202 (1972), I would modify defendant's sentence to 80 months to 10 years.