People v. Greene

145 Mich. App. 580 (1985) 378 N.W.2d 553

PEOPLE
v.
GREENE

Docket No. 81451.

Michigan Court of Appeals.

Decided September 4, 1985.

Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, George B. Mullison, Prosecuting Attorney, and Martha G. Mettee, Assistant Prosecuting Attorney, for the people.

State Appellate Defender (by Shiela N. Robertson), for defendant on appeal.

Before: ALLEN, P.J., and WAHLS and J.P. O'BRIEN,^[*] JJ.

PER CURIAM.

Defendant pled guilty to unlawful use of a motor vehicle, MCL 750.414; MSA 28.646, and was sentenced to four years probation. The probation was conditional on defendant's serving the first 30 days in the Bay County Jail and, upon his release from jail, residing at Bay Fresh Start, a residential treatment facility. Subsequently, defendant violated his probation by not complying with the Bay Fresh Start program rules. He pled guilty to probation violation and was continued on probation but, as a condition of the probation, was sentenced to a one-year jail term, with credit given for time already served. He now appeals as of right.

Defendant first alleges that he should be given credit against his one-year jail sentence for the time he previously spent at Bay Fresh Start.

The prosecutor's argument that defendant should receive no credit because he had already been sentenced to probation for the period in question lacks merit. In People v Sturdivant, 412 Mich. 92; 312 NW2d 622 (1981), the Court held, as a matter of constitutional law, that time spent in confinement as a condition of probation must be subtracted from the sentence imposed after a probation violation. We find People v Chamberlain, 136 Mich. App. 642; 358 NW2d 572 (1984), on which the lower court relied, to be distinguishable because Chamberlain rested on the statute governing conditions of probation, MCL 771.3; MSA 28.1133, and had nothing to do with the sentence credit statute, MCL 769.11b; MSA 28.1083(2).

In this case, the fact that the defendant was sentenced to jail, as a condition of his probation, is inconsequential to our analysis. The real issue is the sentence credit statute. As the Court noted in Chamberlain, supra, pp 647-648, the sentence credit statute is to be liberally construed. The same liberal construction is not applicable to the statute governing the conditions of probation.

We find this case to be somewhat analogous to People v Strange, 91 Mich. App. 596; 283 NW2d 806 (1979), in which the lower court invoked the delayed sentencing statute, MCL 771.1; MSA 28.1131, and directed defendant to a drug rehabilitation center. When defendant left the center early, he was sentenced to from 6 to 15 years in prison with no time given for the 170 days he spent at the center. This Court reversed, citing People v Gravlin, 52 Mich. App. 467, 469; 217 NW2d 404 (1974), which held that: "A defendant must be given credit against his sentence for time spent in confinement pursuant to governmental authority, regardless of the place of confinement."

A review of the record shows that Bay Fresh Start is funded by the Department of Corrections. The program is designed to strictly regiment and control the residents' activities. We feel that such a restrictive environment is tantamount to confinement, and, as such, defendant is entitled to credit for time served at Bay Fresh Start.

Finally, we note that two other panels of this Court have recently reached the same conclusion we do with respect to an almost identical issue. People v Winchell, 143 Mich. App. 164; 371 NW2d 514 (1985); People v Burton Smith, 143 Mich. App. 782; 372 NW2d 660 (1985). Winchell also dealt with the Bay Fresh Start program and the Court found it restrictive enough to constitute confinement. Although in both Winchell and Smith the defendants were sentenced to prison after violating their probation, as opposed to being continued on probation but sent to jail, we do not feel the distinction mandates a different result. The defendant here was given credit for time served in the county jail and, since we hold that time spent at Bay Fresh Start is tantamount to confinement, he should also be given sentence credit for that time as well.

We disagree with defendant, however, as to his second allegation of error. He argues that the offense for which he was convicted is a misdemeanor and thus, pursuant to MCL 771.2; MSA 28.1132, he cannot be sentenced to more than two years probation. In the Penal Code, the unlawful use of a motor vehicle is classified as a misdemeanor. However, the Code of Criminal Procedure, MCL 761.1(g); MSA 28.843(g), defines a felony as an offense for which the offender may be imprisoned for more than one year. The statutes governing length of probation and defining a felony are both found in the Code of Criminal Procedure, which was enacted after the Penal Code. The Legislature, when enacting a statute, is presumed to have knowledge of existing statutes. People v Rosecrants, 88 Mich. App. 667, 670; 278 NW2d 713 (1979).

Also, our Supreme Court has recently decided that an offense is a felony "so long as the statutory maximum is for more than one year". People v Blyth, 417 Mich. 430, 437; 339 NW2d 399 (1983). Since the statutory maximum sentence for unlawful use of a motor vehicle is two years, the offense is a felony and a probation sentence of up to five years may be imposed. See People v Hathcox, 135 Mich. App. 82, 86; 351 NW2d 903 (1984), and People v Reuther, 107 Mich. App. 349, 352-353; 309 NW2d 256 (1981).

Defendant's conviction is affirmed, and the case is remanded for computation of the sentence credit in light of this opinion.

NOTES

[*] Recorder's court judge, sitting on the Court of Appeals by assignment.