People v. Forney

276 N.W.2d 498, 88 Mich. App. 5, 1979 Mich. App. LEXIS 1938

• Court: Michigan Court of Appeals
• Decided: January 3, 1979
• Docket: Docket No. 78-1584
• Status: Published

Opinion

R. B. Burns, P.J.

Defendant pled guilty to breaking and entering with intent to commit larceny in violation of MCL 750.110; MSA 28.305. She was sentenced to 4 years probation with the first 90 days to be served in the county jail, and with credit for 38 days served.

She appeals on the theory that she pled guilty only because the chief of police assured her that she would receive probation and that she did not envision serving time in jail as part of probation.

This is an unusual case. There was a post plea hearing before the trial judge who accepted defendant’s guilty plea. He found that the chief investigative officer had promised that defendant would be granted probation in exchange for the cooperation of her husband. The trial judge then disqualified himself and deferred sentencing to another judge.

As previously stated, defendant did receive probation, but the first 90 days of the probation was to be served in the county jail.

MCL 771.3(3); MSA 28.1133(3) states in part:

"As a condition of probation, the court may require the probationer to be imprisoned in the county jail or the house of correction for not more than 6 months.”

However, in this case the agreement was not made by the defense attorney and the prosecutor, who could appreciate the legal and technical implications of such an agreement. The agreement was made between a 19-year-old youth and the chief of police.

In our opinion, a lay person does not envision incarceration as a part of "probation”.

The conviction is affirmed but the case is remanded to the trial court for resentencing in accordance with the intent of the original bargain.