People v. McDiarmid

266 N.W.2d 760, 82 Mich. App. 499, 1977 Mich. App. LEXIS 1300

Opinion

Per Curiam.

On May 5, 1975, defendant Mark Alan McDiarmid pled guilty in Genesee County Circuit Court to delivering heroin contrary to MCLA 335.341(l)(a); MSA 18.1070(41)(l)(a). He was sentenced on August 21, 1975, to a prison term of 13 to 20 years. Subsequently, defendant filed a motion requesting resentencing upon the basis of an affidavit alleging use by the trial court of improper and inaccurate information¹ in the original sentencing decision. The court denied defendant’s request for a hearing. Defendant appeals as of right.

On appeal, defendant alleges that the trial court erred reversibly by denying him a hearing on the strength of the affidavit submitted in support of his motion for resentencing. We do not agree.

The Michigan Supreme Court has recently held that where defendant asserts that the trial court has considered inaccurate information in its sentencing and timely moves the court to vacate the sentence prior to appeal, including with his motion appropriate supporting affidavits, the trial court shall hear defendant’s claims and make a proper disposition. Guilty Plea Cases, 395 Mich 96, 137; 235 NW2d 132 (1975).

No special rule or statute applies to measure the appropriateness of the supporting affidavit. Therefore, we turn to GCR 1963, 785.1(1), which states that rules of civil procedure will obtain in criminal cases where neither court rule nor statute provide otherwise. GCR 1963, 527.3 requires that affidavits in support of a motion to amend judgment must contain competent legal evidence. Consequently, as Michigan courts have held affidavits based upon hearsay incompetent evidence to support a motion such as the present, we conclude the trial court was not in error by denying defendant’s motion. See Sylvester v Grabowski, 370 Mich 503, 506-507; 122 NW2d 707 (1963), Crowley v Upleger, 273 Mich 541, 542-543; 263 NW 737 (1935).

Affirmed.

1 According to the affidavit secured from defendant’s brother, James L. McDiarmid, information was provided him by a third party to the effect that the sentencing judge believed defendant had perjured himself while testifying in another criminal matter, thereby implying that the judge had relied on this belief in sentencing defendant here.