People v. Jordan

271 N.W.2d 275, 85 Mich. App. 459, 1978 Mich. App. LEXIS 2422

Opinions

J. H. Gillis, J.

Defendant does not appeal from his July 11, 1977, plea-based conviction of attempted possession of heroin contrary to MCL 750.92, 335.341(4)(a); MSA 28.287, 18.1070(41)(4)(a), wherein he was sentenced to a prison term of 1 year, 11 months, to 2 years. He does, however, appeal from the sentence, alleging that he was denied his right of allocution prior to sentencing in conformity with GCR 1963, 785.8(2) and he further contends that the minimum prison sentence of 1 year, 11 months, violates People v Tanner, 387 Mich 683; 199 NW2d 202 (1972).

There is ample support in the record for his first argument, and, therefore, we would remand the case for resentencing with the defendant having the right to advise the court of any circumstances he believes the court should consider in imposing sentence.

Inasmuch as the indeterminate sentence act (MCL 769.8; MSA 28.1080) only applies to one convicted of a crime for the first time, it does not apply to the instant case wherein the defendant had prior felony convictions. Defendant’s sentence is therefore controlled by People v Banks, 73 Mich App 492; 252 NW2d 501 (1977). Accordingly, the trial court did not err in setting defendant’s sentence at 1 year, 11 months to 2 years.

Remanded for proceedings consistent with this opinion.

McGregor, J., concurred.