People v. Stange

91 Mich. App. 596 (1979) 283 N.W.2d 806

PEOPLE
v.
STANGE

Docket No. 78-4544.

Michigan Court of Appeals.

Decided August 6, 1979.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Robert F. Leonard, Prosecuting Attorney, and Donald A. Kuebler, Chief, Appellate Division, for the people.

Peter Anastor, for defendant on appeal.

Before: N.J. KAUFMAN, P.J., and D.C. RILEY and J.X. THEILER,^[*] JJ.

D.C. RILEY, J.

We answer a question of first impression: whether a defendant, ordered by the trial court to a drug rehabilitation center pursuant to the delayed sentencing statute, MCL 771.1; MSA 28.1131, is entitled to credit against his ultimate sentence for time expended therein?

Defendant pled guilty on September 19, 1977, to assault with intent to commit armed robbery, MCL 750.89; MSA 28.284. He remained incarcerated until December 15, 1977, at which time the lower court invoked the delayed sentencing statute, see infra, and directed defendant to the Odyssey-Rubicon House, a drug rehabilitation center. Sentencing would occur on June 21, 1978. Defendant was placed in the custody of the Genesee County jail until the probation department transported him to the center.

On June 9, 1978, the defendant left the center without permission. He was picked up by the police a day later and put in the Genesee County jail. On June 21, 1978, the lower court sentenced defendant to 6 to 15 years in prison with credit for 302 days served in jail awaiting sentence. This credit did not include the 170 days spent at the center. Defendant stated that he left the center with only a few days left because of a strenuous 36-hour marathon session where no one was permitted to sleep. Defendant now appeals this denial of credit.

In pertinent part, MCL 771.1; MSA 28.1131 provides as follows:

"* * * in an action in which the court may place the defendant on probation, it may delay the imposing of sentence of the defendant for a period of not to exceed 1 year for the purpose of giving the defendant an opportunity to prove to the court his eligibility for probation or other leniency compatible with the ends of justice and the rehabilitation of the defendant. * * * The delay in passing sentence shall not deprive the court of jurisdiction to sentence the defendant at any time during the extended period."

MCL 769.11b; MSA 28.1083(2) allows credit for pre-sentence incarceration under certain circumstances:

"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."

The prosecution seeks to analogize the present case to decisions which hold that time spent in jail as part of a sentence of probation should not be credited in the event that probation is revoked. People v Lacy, 54 Mich. App. 471; 221 NW2d 199 (1974), People v Westman, 53 Mich. App. 662, 666; 220 NW2d 169 (1974), People v Jaynes, 23 Mich. App. 360; 178 NW2d 558 (1970). For two reasons, we do not agree.

First, the probation statute at issue^[1] evinces a legislative intent to permit, upon revocation of probation, the imposition of full punishment absent consideration of any previously imposed penalty. Second, under the probation statute, a defendant has been already sentenced at the time of his initial imprisonment, whereas, under the delayed sentencing statute, a defendant is not originally sentenced until a later date. Significantly, the crediting statute applies to the time spent in jail prior to sentencing, MCL 769.11b. However, jail time served as part of probation is subsequent to sentencing and, therefore, not entitled to any legislatively mandated credit upon revocation.

In the case at bar, the transcript reveals that defendant was not allowed bond and was ordered to the Odyssey-Rubicon House until graduation or express permission of the probation officer. The trial court delayed sentence until that time. As defendant comes, in this respect, within the ambit of the crediting statute, we must decide whether his term at the drug rehabilitation center is equivalent to time served in a "jail".

Although no cases precisely decide the present issue, this Court has created an exiguous patchwork of other factual circumstances to which the crediting statute has been held to apply.

In People v Gravlin, 52 Mich. App. 467; 217 NW2d 404 (1974), defendant was adjudicated incompetent to stand trial and committed to the Ionia State Hospital. Three years later, he was tried and convicted for the crime. The lower court refused to give him credit against the eventual sentence. This Court reversed, holding that under a different statute,^[2] defendant was entitled to credit for time spent in the hospital. However, the Court further noted that the crediting statute here in issue dictated the same result.

Similarly, People v Ervin Thomas, 58 Mich. App. 9; 226 NW2d 734 (1975), held that defendant deserved credit for time spent in custody in a juvenile detention facility.

The crediting statute is remedial in nature, and as such deserves liberal construction in order to effectuate the legislative purpose. Brinson v Genesee Circuit Judge, 403 Mich. 676, 686; 272 NW2d 513 (1978), People v Lyles, 76 Mich. App. 688, 690; 257 NW2d 220 (1977), People v Groeneveld, 54 Mich. App. 424, 427; 221 NW2d 254 (1974). Gravlin, supra, at 469 stated that:

"[a] ``jail' means a place of confinement * * *. A defendant must be given credit against his sentence for time spent in confinement pursuant to governmental authority, regardless of the place of confinement."

Here, we believe that the circumstances under which defendant was ordered to the rehabilitation center amounts to a confinement analogous to jail. Defendant was placed in the Genesee County jail until he was transported to the center. Once there he was not permitted to leave except for one day of family visitation. When defendant left the center 12 days earlier than ordered by the lower court, he was arrested.

Hence, we conclude, for all the above reasons, that defendant must be given credit against sentence for the 170 days spent at the Odyssey-Rubicon House.

Reversed and remanded for resentencing.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.

[1] MCL 771.4; MSA 28.1134 provides that:

"In case such probation order is terminated or revoked the court may proceed to sentence such probationer in the same manner and to the same penalty as it might have done if such probation order had never been made." (Emphasis supplied.)

[2] MCL 767.27a(9); MSA 28.966(11)(9), since repealed. See MCL 330.2042; MSA 14.800(1042).