People v. Dubis

158 Mich. App. 504 (1987) 405 N.W.2d 181

PEOPLE
v.
DUBIS

Docket No. 84877.

Michigan Court of Appeals.

Decided March 16, 1987.

Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, David H. Sawyer, Prosecuting Attorney, and Timothy K. McMorrow, Chief Appellate Attorney, for the people.

George S. Buth and James R. Rinck, for defendant on appeal.

Before: R.B. BURNS, P.J., and R.M. MAHER and F.D. BROUILLETTE,^[*] JJ.

AFTER REMAND

PER CURIAM.

Defendant pled guilty to delivery of cocaine, MCL 333.7401(1) and (2)(a)(iv); MSA 14.15(7401)(1) and (2)(a)(iv), on March 12, 1983. He was not sentenced until September 18, 1984.

On the original submission, this Court remanded the case to the trial court to supplement the record to determine whether there was sufficient reason for the delay in sentencing. People v Dubis, unpublished opinion per curiam of the Court of Appeals, decided November 21, 1986 (Docket No. 84877). The trial court has held the hearing on remand and the matter is now before us for final disposition.

Sentencing may be delayed for up to one year. MCL 771.1; MSA 28.1131. Where the trial court violates the one-year rule, it is not necessarily deprived of jurisdiction if there is a showing of good cause for the delay. People v McLott, 70 Mich. App. 524; 245 NW2d 814 (1976); People v Baker, 120 Mich. App. 89; 327 NW2d 403 (1982). However, it is only in the most limited and unusual circumstances that a delay beyond one year in sentencing is justified. People v Turner, 92 Mich. App. 485; 285 NW2d 340 (1979).

At the conclusion of the hearing on remand, Judge Hoffius concluded that the present case was distinguishable from Turner, supra. However, Judge Hoffius failed to state on the record any facts which distinguish this case from Turner. Indeed, the trial court found the delay in the instant case to be for just cause as it worked to defendant's advantage and, perhaps, was even instigated by defendant, who wished to have his subsequent cooperation with the police in other cases taken into consideration when he was eventually sentenced in the case at bar. However, the Turner Court clearly rejected the argument that a delay in sentencing can be justified because it was requested by defense counsel or because the defendant acquiesced at each adjournment in sentencing. Turner, supra, p 488.

While Judge Hoffius may be able to distinguish this case from Turner, we cannot. Nothing in the record before us establishes that "most limited and unusual of circumstances" that the Turner Court spoke of in justifying a delay of sentencing beyond the statutory maximum of one year. Turner, supra, p 489. While the trial court may be correct that it was to defendant's advantage to have sentencing delayed as long as possible, that is probably true in most cases. We can find nothing unique about this case to conclude that delay in sentencing beyond one year was necessary.

Defendant's sentence is vacated as the court lacked jurisdiction to sentence. However, defendant remains convicted of the crime and subject to any collateral consequences arising from that conviction. Turner, supra, pp 489-490.

NOTES

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