People v. Banks

Michigan Court of Appeals

People v. Banks

252 N.W.2d 501, 73 Mich. App. 492, 1977 Mich. App. LEXIS 1342

CourtMichigan Court of Appeals

DecidedFebruary 2, 1977

DocketDocket 23423

StatusPublished

Cited by14 cases

This text of 252 N.W.2d 501 (People v. Banks) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Banks, 252 N.W.2d 501, 73 Mich. App. 492, 1977 Mich. App. LEXIS 1342 (Mich. Ct. App. 1977).

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Opinions

D. E. Holbrook, Jr., J.

Defendant was convicted by a jury of breaking and entering, MCLA 750.110; MSA 28.305, and larceny in a dwelling house, MCLA 750.360; MSA 28.592. He was subsequently sentenced to 3 to 15 years imprisonment on the breaking and entering charge and 3 to 4 years imprisonment on the larceny in a dwelling house charge. At the time of sentencing the trial judge noted that the defendant had previously been convicted of another crime for which he received a sentence of 1-1/2 to 15 years imprisonment. Defendant appeals as of right raising two issues, only one of which warrants extended discussion.

Initially defendant contends that the trial court erred in giving an aiding and abetting instruction without sufficient evidence to justify same. This issue may be summarily dismissed. See People v Mann, 395 Mich 472; 236 NW2d 509 (1975). Lastly, defendant contends that the court’s sentence of 3 to 4 years for the larceny in a dwelling house conviction violates the indeterminate sentencing [494]*494act, MCLA 769.8; MSA 28.1080, and the holding by the Supreme Court in People v Tanner, 387 Mich 683, 690; 199 NW2d 202 (1972).

In Tanner, the Court at page 690 stated:

"Convinced as we are, that a sentence with too short .an interval between minimum and maximum is not indeterminate, we hold that any sentence which provides for a minimum exceeding two-thirds of the maximum is improper as failing to comply with the indeterminate sentence act. "(Emphasis supplied.)

It is apparent from the foregoing that the Supreme Court limited its holding that a minimum sentence exceeding two-thirds of the maximum is improper applies only to cases to which the indeterminate sentence act applies.

The indeterminate sentence act, MCLA 769.8; MSA 28.1080, reads in part as follows:

"When any person shall hereafter be convicted for the ñrst time of crime committed after this act takes effect.” (Emphasis supplied.)

Since defendant’s conviction for larceny in a dwelling house was defendant’s third conviction the court was not bound by the indeterminate sentence act and was free to sentence defendant as its discretion dictated. Absent an abuse of discretion, the trial court’s decision will not be disturbed. We find no abuse of discretion and defendant’s sentence shall stand.

Affirmed.

J. H. Gillis, P. J., concurred.

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D. E. Holbrook, Jr., J.

Defendant was convicted by a jury of breaking and entering, MCLA 750.110; MSA 28.305, and larceny in a dwelling house, MCLA 750.360; MSA 28.592. He was subsequently sentenced to 3 to 15 years imprisonment on the breaking and entering charge and 3 to 4 years imprisonment on the larceny in a dwelling house charge. At the time of sentencing the trial judge noted that the defendant had previously been convicted of another crime for which he received a sentence of 1-1/2 to 15 years imprisonment. Defendant appeals as of right raising two issues, only one of which warrants extended discussion.

Initially defendant contends that the trial court erred in giving an aiding and abetting instruction without sufficient evidence to justify same. This issue may be summarily dismissed. See People v Mann, 395 Mich 472; 236 NW2d 509 (1975). Lastly, defendant contends that the court’s sentence of 3 to 4 years for the larceny in a dwelling house conviction violates the indeterminate sentencing [494]*494act, MCLA 769.8; MSA 28.1080, and the holding by the Supreme Court in People v Tanner, 387 Mich 683, 690; 199 NW2d 202 (1972).

In Tanner, the Court at page 690 stated:

"Convinced as we are, that a sentence with too short .an interval between minimum and maximum is not indeterminate, we hold that any sentence which provides for a minimum exceeding two-thirds of the maximum is improper as failing to comply with the indeterminate sentence act. "(Emphasis supplied.)

It is apparent from the foregoing that the Supreme Court limited its holding that a minimum sentence exceeding two-thirds of the maximum is improper applies only to cases to which the indeterminate sentence act applies.

The indeterminate sentence act, MCLA 769.8; MSA 28.1080, reads in part as follows:

"When any person shall hereafter be convicted for the ñrst time of crime committed after this act takes effect.” (Emphasis supplied.)

Since defendant’s conviction for larceny in a dwelling house was defendant’s third conviction the court was not bound by the indeterminate sentence act and was free to sentence defendant as its discretion dictated. Absent an abuse of discretion, the trial court’s decision will not be disturbed. We find no abuse of discretion and defendant’s sentence shall stand.

Affirmed.

J. H. Gillis, P. J., concurred.

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Bluebook (online)

252 N.W.2d 501, 73 Mich. App. 492, 1977 Mich. App. LEXIS 1342, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-banks-michctapp-1977.

Opinions

D. E. Holbrook, Jr., J.

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