People v. Kimbrough

85 Mich. App. 591 (1978) 272 N.W.2d 146

PEOPLE
v.
KIMBROUGH

Docket No. 77-2862.

Michigan Court of Appeals.

Decided September 19, 1978.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward R. Wilson, Principal Attorney, Appeals, and Timothy Scallen, Assistant Prosecuting Attorney, for the people.

Nelson & Kierpiec, for defendant on appeal.

Before: R.M. MAHER, P.J., and J.H. GILLIS and McGREGOR,^[*] JJ.

J.H. GILLIS, J.

Defendant pled guilty to a charge of violation of probation and was sentenced to a minimum of 28 months and a maximum of 30 months imprisonment. On appeal, he claims this sentence transgressed the limitations set out by the Supreme Court in People v Tanner, 387 Mich. 683; 199 NW2d 202 (1972).

The Tanner "two-thirds" rule applies only to sentences under the indeterminate sentencing act. MCL 769.8; MSA 28.1080. By its terms this statute applies to persons "convicted for the first time". Defendant has a prior felony conviction. Therefore, the trial court was not bound by the Tanner rule. People v Makidon, 84 Mich. App. 287; 269 NW2d 568 (1978), People v Malchi White, 81 Mich. App. 226; 265 NW2d 100 (1978), People v Banks, 73 Mich. App. 492; 252 NW2d 501 (1977).

Affirmed.

McGREGOR, J., concurred.

R.M. MAHER, P.J. (dissenting).

I do not agree that the court was not bound by the limitations of People v Tanner, 387 Mich. 683; 199 NW2d 202 (1972). Defendant is only a repeat and not an habitual offender. Accordingly, on the authority of People v Redwine, 73 Mich. App. 83; 250 NW2d 550 (1976), People v Reginald Harris, 80 Mich. App. 228; 263 NW2d 40 (1977), and People v Reese, 83 Mich. App. 186; 268 NW2d 340 (1978), the sentence should be modified to a term of 20 months to 30 months, to reflect the mandate of People v Tanner, supra.

NOTES

[*] Former Court of Appeals judge, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.