People v. Bowns

39 Mich. App. 424 (1972) 197 N.W.2d 834

PEOPLE
v.
BOWNS

Docket No. 11744.

Michigan Court of Appeals.

Decided March 24, 1972.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Bruce A. Barton, Prosecuting Attorney, Paula O. Hosick, Chief Appellate Attorney, and Richard A. Cooley, Jr., Assistant Prosecuting Attorney, for the people.

Arthur J. Tarnow, State Appellate Defender, and Larry R. Farmer, Assistant Defender, for defendant.

Before: DANHOF, P.J., and T.M. BURNS and VAN VALKENBURG,^[*] JJ.

VAN VALKENBURG, J.

Defendant pled guilty to escaping from prison MCLA 750.193; MSA 28.390, was sentenced from 1-1/2 to 5 years in prison, and appeals.

Defendant first contends that the February 15, 1971 order of forfeiture of his accumulated good time by the Department of Corrections amounted to double jeopardy, in that said forfeiture was entered because of his prison escape. Such a contention is without merit. In re Evans, 352 Mich 185 (1958); People v Wilson, 6 Mich App 474 (1967); People v Shastal, 26 Mich App 347 (1970).

Defendant also asserts that he was entitled to be sentenced for a definite term rather than to an indeterminate term; citing People v Biniecki, 35 Mich App 335 (1971). While the Biniecki Court was correct in holding that MCLA 769.8; MSA 28.1080 does not apply to the offense of escape from prison, it does not follow that an indeterminate sentence cannot be given. The Supreme Court in In re Wilson, 295 Mich 179, 184 (1940) held:

"The sentence for escaping from jail did not have to be indeterminate as it was a second offense." (Emphasis added.)

The Court's use of the phrase "did not have to be" rather than "could not be" clearly indicates that the sentence does not have to be indeterminate but could be if the trial court wished.

The Attorney General's office, in a formal opinion, determined that the sentence for prison escape could be either definite or indeterminate, as the trial court desired. OAG, 1947-1948, No 689, p 568 (February 4, 1948). In the years since the Wilson opinion and the Attorney General's opinion, the Legislature has amended both sections of the indeterminate sentence act and the prison break statute. Since the Legislature has failed to act in the face of opinions, it must be assumed that the Legislature agrees that these opinions express the intent of the Legislature.

Since it was only necessary for the Biniecki Court to determine that a definite sentence was proper, to the extent that the Biniecki opinion appears to hold that an indeterminate sentence cannot be given upon conviction for escaping from prison, it is dicta and should be given no precedential effect.

Affirmed.

All concurred.

NOTES

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