People v. Morin

407 N.W.2d 43, 159 Mich. App. 582
CourtMichigan Court of Appeals
DecidedApril 21, 1987
DocketDocket 88854
StatusPublished
Cited by8 cases

This text of 407 N.W.2d 43 (People v. Morin) 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. Morin, 407 N.W.2d 43, 159 Mich. App. 582 (Mich. Ct. App. 1987).

Opinions

[584]*584J. P. Swallow, J.

On January 13, 1984, defendant pled guilty to larceny in a store, MCL 750.360; MSA 28.592, and attempted larceny in a store, MCL 750.360; MSA 28.592 and MCL 750.92; MSA 28.287. On February 6, 1984, defendant was placed on five years probation. As a condition of his probation, defendant was ordered to the Rubicon/Odyssey House, a state-licensed residential drug rehabilitation program. He entered the Rubicon/Odyssey House in Detroit on March 1, 1984, and was subsequently transferred to the Rubicon/ Odyssey House in Flint, where he left without proper authorization on August 6, 1984. Subsequently, defendant was ordered to maintain his residence at Bay Fresh Start, a halfway house, and comply with all the rules, regulations and requirements of that program. On February 12, 1985, a violation of probation petition was initiated alleging violation of the rules of the Bay Fresh Start program for failing to return to the facility on February 12, 1985. On February 28, 1985, defendant was found in violation of the probation order and was resentenced on June 4, 1985, at which time his probation was reinstated and he was released from Bay County Jail.

On July 30, 1985, a petition and bench warrant for violation of probation was signed by the circuit court. The petition alleged that defendant had been involved in criminal activity, to wit: indecent exposure and larceny from a store. On September 6, 1985, defendant was sentenced for both convictions for which probation was imposed, from thirty-two to forty-eight months for larceny in a building, and from sixteen to twenty-four months for attempted larceny in a building. The sentencing judge ordered that the 277 days defendant spent in jail be credited towards his sentence, but refused to give credit for additional time defendant [585]*585spent in Rubicon/Odyssey House and Bay Fresh Start.

Defendant raises two issues on appeal. One, defendant claims that the sentences imposed should shock the conscience of this Court. See People v Coles, 417 Mich 523, 550; 339 NW2d 440 (1983). Second, defendant contends that he had a statutory right to credit for time served at Rubicon/Odyssey House and Bay Fresh Start.

The sentences imposed do not shock the conscience of this Court. As reasons for the sentences imposed, the trial court took note of the unsuccessful attempts to reform defendant through probation, the need to protect society, and the need to deter others from like conduct. Given defendant’s record of convictions for larceny offenses, defendant’s long-standing substance abuse problem, and defendant’s failure to complete the Rubicon program, we concur in the trial court’s judgment that defendant was in need of rehabilitation. Defendant’s prior record and inability to reform through means other than incarceration justified substantial incarceration. The sentences imposed by the trial court do not evidence an abuse of discretion which shocks the conscience of this Court.

This Court finds much more troublesome defendant’s contention that he is entitled to credit for time spent at the Rubicon House and Bay Fresh Start program. At the heart of the present controversy lie this state’s probation statutes, most particularly MCL 771.3; MSA 28.1133, which provides in relevant part:

(2) As a condition of probation, the court may require the probationer to do 1 or more of the following:
(a) Be imprisoned in the county jail for not more than 12 months, at the time or intervals, which [586]*586may be consecutive or nonconsecutive, within the probation as the court may determine. However, the period of confinement shall not exceed the maximum period of imprisonment provided for the offense charged if the maximum period is less than 12 months.
Q)) Pay immediately or within the period of his or her probation, a fine imposed at the time of being placed on probation.
(c) Pay costs pursuant to subsection (4).
(d) Pay restitution to the victim or the victim’s estate.
(e) Engage in community service.
(4) The court may impose other lawful conditions of probation as the circumstances of the case may require or warrant, or as in its judgment may be proper. If the court requires the probationer to pay costs, the costs shall be limited to expenses specifically incurred in prosecuting the defendant or providing legal assistance to the defendant and probationary oversight of the probationer.

Defendant contends that he is entitled to credit for any court-ordered confinement, whether that confinement is in the county jail pursuant to subsection (2)(a) or as an "other condition” of probation pursuant to subsection (4). Defendant relies on the sentencing credit statute, MCL 769.11b; MSA 28.1083(2), and People v Stange, 91 Mich App 596; 283 NW2d 806 (1979), in which this Court held that time spent at Rubicon House prior to sentencing must be credited pursuant to the sentencing credit statute. Alternatively, defendant cites People v Winchell, 143 Mich App 164; 371 NW2d 514 (1985), lv den 424 Mich 878 (1986), in which this Court held that time spent in Bay Fresh Start as a condition of probation was required to be credited against defendant’s ultimate sentence.

[587]*587The people counter that the jail credit statute has no application to the instant case, and that defendant’s proffered construction would work against the rehabilitative purpose of the probation statutes by limiting a trial judge’s alternatives with regard to rehabilitative programs and removing incentives for probationers to successfully complete probation programs.

Initially, we agree with the people that the sentence credit statute has no application to the instant case. The statute, MCL 769.11b; MSA 28.1083(2), provides: "Whenever any person is hereafter convicted of any crime within this state and has served any time in jail prior to sentencing . . . the trial court in imposing sentence shall specifically grant credit against the sentence for such time served in jail prior to sentencing.” Defendant’s court-required residency in Rubicon House and Bay Fresh Start was subsequent to sentencing in the instant case. For that reason, People v Stange, supra, cited by defendant, is distinguishable. In Stange, the trial court specifically delayed sentencing pursuant to MCL 771.1(2); MSA 28.1131(2) and ordered the defendant to Rubicon House in the interim.

In People v Winchell, supra, this Court held that time spent at Bay Fresh Start as a condition of probation must be credited against a defendant’s ultimate sentence under the sentence credit statute as time served "in jail” under that statute. See also People v Greene, 145 Mich App 580; 378 NW2d 553 (1985), lv den 424 Mich 873 (1986). As outlined above, we believe the sentence credit statute has no application to the facts here or in Winchell. To the extent it might be argued that court-required residency as a condition of probation prior to a sentence imposed following a probation violation is time served prior to sentencing, [588]*588we must conclude that the Legislature did not intend credit for such time served.

MCL 771.4; MSA 28.1134 provides:

Free access — add to your briefcase to read the full text and ask questions with AI

Related

People v. Scott
548 N.W.2d 678 (Michigan Court of Appeals, 1996)
People v. Whiteside
468 N.W.2d 504 (Michigan Supreme Court, 1991)
People v. Leske
466 N.W.2d 361 (Michigan Court of Appeals, 1991)
People v. Sheryl Miller
452 N.W.2d 882 (Michigan Court of Appeals, 1990)
People v. Morin
407 N.W.2d 43 (Michigan Court of Appeals, 1987)

Cite This Page — Counsel Stack

Bluebook (online)
407 N.W.2d 43, 159 Mich. App. 582, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-morin-michctapp-1987.