People v. Albane

408 N.W.2d 146, 160 Mich. App. 331

• Court: Michigan Court of Appeals
• Decided: May 18, 1987
• Docket: Docket No. 96572
• Status: Published

Opinion

Per Curiam.

Defendant, Vincent Michael Al-bane, pled guilty to delivery of cocaine, more than 50 grams but less that 225 grams, in violation of MCL 333.7401(1) and (2)(a)(iii); MSA 14.15(7401)(1) and (2)(a)(iii). Defendant was sentenced to a term of life on probation with a provision that he spend the first year in the Macomb County Jail.

On appeal, defendant claims that this was an unlawful sentence, in violation of MCL 771.3(3); MSA 28.1133(3), which provides as follows:

(3) Subsection (2) shall not apply to a person who is placed on probation for life pursuant to sections 1(3) and 2(3) of this chapter. [Emphasis added.]

Subsection (2) of MCL 771.3; MSA 28.1133 provides:

(2) As a condition of probation, the court may require the probationer to do 1 or more of the following:

(a) Be imprisoned in the county jail for not more than 12 months, at the time or intervals, which may be consecutive or nonconsecutive, within the probation as the court may determine. However, the period of confinement shall not exceed the maximum period of imprisonment provided for the offense charged if the maximum period is less than 12 months.

We agree with defendant. Consequently, that portion of defendant’s sentence providing for one year in the Macomb County jail is determined to be illegal and is, therefore, set aside. Otherwise, defendant’s conviction and sentence are affirmed.

Affirmed in part and reversed in part.