People v. Corlin

291 N.W.2d 188, 95 Mich. App. 740, 1980 Mich. App. LEXIS 2514

• Court: Michigan Court of Appeals
• Decided: March 4, 1980
• Docket: Docket 78-5282
• Status: Published

Opinions

V. J. Brennan, P.J.

Defendant was originally charged with two counts of delivery of a controlled substance, to-wit: pentobarbital and methaqualone. On August 31, 1978, he pled guilty to one count of delivery of pentobarbital, MCL 335.341(l)(b); MSA 18.1070(41)(l)(b). On October 13, 1978, Judge Cook sentenced defendant to 12 months in the Kent County Jail. Immediately thereupon, it became apparent that the presentence report, upon which Judge Cook relied, erroneously stated that defendant had pled to possession, not delivery, and that the maximum sentence which could be imposed was two years. Judge Cook thereupon adjourned the proceedings one week in order to establish exactly what the conviction was. Defendant’s bond was revoked and he was remanded to Kent County Jail.

On October 20, 1978, defendant was returned to court. Acknowledging that his previous sentencing of defendant was based upon an error contained in the presentence report, Judge Cook, over objection of defense counsel, resentenced the defendant to 3 to 7 years for delivery of pentobarbital, crediting him with the 2 days previously served. The crime for which defendant was originally and erroneously sentenced carried a maximum sentence of 2 years. MCL 335.341(4)(b); MSA 18.1070(41)(4)(b). The crime to which defendant pled guilty carries a maximum sentence of 7 years. MCL 335.341(l)(b); MSA 18.1070(41)(l)(b).

Relying upon People v Fox, 312 Mich 577; 20 NW2d 732 (1945), defendant correctly argues that once the trial court imposes a valid sentence, it cannot set aside that sentence and impose a new and different one. See People v Meservey, 76 Mich 223, 226; 42 NW 1133 (1889), and People v Kelley, 79 Mich 320, 321; 44 NW 615 (1890). To be valid, however, the sentence must be based on accurate information. United States v Tucker, 404 US 443; 92 S Ct 589; 30 L Ed 2d 592 (1972), People v Malkowski, 385 Mich 244, 249; 188 NW2d 559 (1971), People v Zachery Davis, 41 Mich App 683, 692; 200 NW2d 779 (1972). Here defendant’s sentence was based on clearly erroneous information contained in the presentence report.

A sentence based upon an offense to which defendant has not pled guilty is invalid and after discovery of the error the trial court has authority to properly sentence defendant for the offense to which he did plead. In re Pardee, 327 Mich 13, 18; 41 NW2d 466 (1950), and People v Johnson, 60 Mich App 371; 230 NW2d 438 (1975). People v Johnson, supra, is virtually identical to the instant case. In Johnson, defendant pled guilty to charges of gross indecency and assault with intent to rob being unarmed. Based on an error in the presentence report, he was sentenced to two concurrent 3 to 5 year sentences for gross indecency and attempted robbery not armed. When the error was subsequently discovered, the trial court changed one of defendant’s two 3 to 5 year sentences to 5 to 15 years for assault with attempt to rob being unarmed. Upon appeal we affirmed. The error in the Johnson presentence report was not discovered until after sentencing and thus differs from the instant case where there was some discussion as to the existence of a possible mistake prior to sentencing. This factual disparity, however, is a distinction without a difference not requiring a different result.

Defendant also argues that in contravention of North Carolina v Pearce, 395 US 711, 717; 89 S Ct 2072; 23 L Ed 2d 656 (1969), he has been twice punished for the same offense. We disagree. The sentence of 3 to 7 years is a correction of the first sentence, not a double sentence. In re Pardee, supra, at 18.

Affirmed.

G. E. Bowles, J., concurred.