DocketNumber： Docket 177290
Citation Numbers： 551 N.W.2d 191, 217 Mich. App. 75
Judges： Fitzgerald, Corrigan, Schmucker
Filed Date： 7/29/1996
Status： Precedential
Modified Date： 10/19/2024
The prosecutor appeals as of right
Defendant was charged with delivery of between 50 and 224 grams of cocaine and conspiracy to deliver between 50 and 224 grams of cocaine. Pursuant to a plea agreement in which the conspiracy charge was dismissed, defendant pleaded guilty of delivery of between 50 and 224 grams of cocaine on July 26, 1984. He was sentenced to lifetime probation.
On appeal, the prosecutor argues that the trial court abused its discretion in setting aside defendant’s conviction. A trial court’s authority to expunge a properly obtained criminal conviction is derived from MCL 780.621; MSA 28.1274(101). People v Boynton, 185 Mich App 669, 671; 463 NW2d 174 (1990). The expungement statute provides:
(1) Except as provided in subsection (2), a person who is convicted of not more than 1 offense may file an application with the convicting court for the entry of an order setting aside the conviction.
(2) A person shall not apply to have set aside, nor may a judge set aside, a conviction for a felony for which the maximum penalty is life imprisonment or a conviction for a traffic offense.
(3) An application shall not be filed until the expiration of 5 years following the imposition of the sentence for the conviction that the applicant seeks to set aside or 5 years following completion of any term of imprisonment for that conviction, whichever occurs later.
* * *
(9) If the court determines that the circumstances and behavior of the applicant from the date of the applicant’s conviction to the filing of the application warrant setting aside the conviction and that setting aside the conviction is consistent with the public welfare, the court may enter an order setting aside the conviction. The setting aside of a conviction under the act is a privilege and conditional and is not a right. [MCL 780.621; MSA 28.1274(101).]
At the time of defendant’s sentencing, the trial court had the option of imposing a sentence of lifetime probation for a conviction under MCL 333.7401(2)(a)(iii); MSA 14.15(7401)(2)(a)(iii). It is clear, by reference to the probation statute, that lifetime probation imposed for a violation of § 7401(2)(a)(iii) may not be reduced other than by a revocation that results in imprisonment. The probation statute provides in relevant part:
The sentencing judge may place a defendant on life probation pursuant to subsection (1) if the defendant is convicted for a violation of section 7401(2)(a)(iv)[3 ] or 7403(2)(a)(iv) of the public health code, Act No. 368 of the Public Acts of 1978, being sections 333.7401 or 333.7403 of the Michigan Compiled Laws, or conspiracy to commit either of those 2 offenses. [MCL 771.1(4); MSA 28.1131(4).]
A defendant who is placed on probation pursuant to section 1(4) of this chapter shall be placed on probation for*79 life. That sentence shall be made subject to conditions of probation specified in section 3 of this chapter, including the payment of a probation supervision fee as prescribed in section 3c of this chapter, and to revocation for violation of those conditions, but the period of probation shall not be reduced other than by a revocation that results in imprisonment. [MCL 771.2(3); MSA 28.1132(3) (emphasis added).]
The primary goal of judicial interpretation of statutes is to give effect to the intent of the Legislature. People v Stanaway, 446 Mich 643, 658; 521 NW2d 557 (1995), cert den 513 US _ (1995). The first criterion in determining intent is the specific language of the statute. House Speaker v State Administrative Bd, 441 Mich 547, 567; 495 NW2d 539 (1993); People v Hawkins, 181 Mich App 393, 396; 448 NW2d 858 (1989). If the plain and ordinary meaning of the language is clear, judicial construction is normally neither permitted nor necessary. Lorencz v Ford Motor Co, 439 Mich 370, 376; 483 NW2d 844 (1992).
The plain language of MCL 771.2(3); MSA 28.1132(3) provides that a sentence of lifetime probation imposed pursuant to MCL 771.1(4); MSA 28.1131(4) may not be reduced other than by a revocation that results in imprisonment. Thus, although MCL 780.621; MSA 28.1274(101) does not specifically prohibit the setting aside of a conviction under § 7401(2)(a)(iii), the probation statute prohibits reduction of the period of probation imposed for a conviction under § 7401(2)(a)(iii). Because expungement of defendant’s conviction under the general expungement statute would effectively reduce defendant’s period of probation in derogation of the specific probation statute, the trial court erred in set
Reversed and remanded for reinstatement of defendant’s conviction and sentence.
In People v Reed, 198 Mich App 639, 642-645; 499 NW2d 441 (1993), aff’d 449 Mich 375; 535 NW2d 496 (1995), the Court held that it had jurisdiction to hear a prosecutor’s appeal when a trial court has granted a defendant relief from judgment. Under the express language of MCL 600.308(l)(a); MSA 27A.308(l)(a) and MCL 600.308(2)(e); MSA 27A.308(2)(e), the prosecutor could have appealed by right or by leave.
At the time of defendant’s conviction, the trial court had discretion to impose a sentence of lifetime probation for delivery of between 50 and 224 grams of cocaine. However, lifetime probation may no longer be imposed upon conviction of this offense. See 1987 PA 275, effective March 30, 1988.
The former version of the statute referred to § 7401(2)(a)(iü). The current version refers to § 7401(2)(a)(iv) because § 7401(2)(a)(iii) no longer provides the sentencing option of lifetime probation. Rather, only § 7401(2)(a)(iv) provides the sentencing option of lifetime probation.
When two statutes conflict and one is specific to the subject matter while the other is only generally applicable, the specific statute prevails. Gephardt v O’Rourke, 444 Mich 535, 542-543; 510 NW2d 900 (1994); Jenkins v Carney-Nadeau Public School, 201 Mich App 142, 145; 505 NW2d 893 (1993).