People v. Haymond ( 1977 )

Quinn, P. J.

Defendant was charged with breaking and entering, MCLA 750.110; MSA 28.305. He pleaded guilty to an added count of larceny in a building, MCLA 750.360; MSA 28.592. He was sentenced to one year in the county jail. His appeal raises one issue:

"Where a defendant has been convicted of larceny in a building, wherein the statutorily described penalties are a maximum of four (4) years in the state prison and/or a $2,000 fine, is a sentence to the county jail for a period of one (1) year made without authority and therefore void?”

MCLA 750.360; MSA 28.592 states that the offense of which defendant stands convicted is a felony but prescribes no penalty. In this situation, MCLA 750.503; MSA 28.771 controls and prescribes:

" * * * shall be punished by imprisonment in the state prison for not more than four [4] years or by a fine of not more than two thousand [2,000] dollars, or by both such fine and imprisonment.”

However, MCLA 769.28; MSA 28.1097(1) provides:

"Notwithstanding any provision of law to the contrary, in case of * * * sentence of any persons convicted of crime * * * to imprisonment for a maximum of 1 year or less, such * * * sentence shall be made to the county jail of the county in which such person was convicted or to the Detroit house of correction, and not to a state penal institution: * * * .”

The sentence was proper, In re Lemire, 360 Mich 693; 105 NW2d 37 (1960).

Defendant’s reliance on People v Biniecki, 35 Mich App 335; 192 NW2d 638 (1971), is misplaced. The case is inapposite and the language relied on in that opinion is dictum which we decline to consider.

Affirmed.