People v. Pool

454 N.W.2d 121, 183 Mich. App. 191

• Court: Michigan Court of Appeals
• Decided: November 15, 1989
• Docket: Docket 109488
• Status: Published

Opinion

Per Curiam.

Defendant pled guilty to a reduced charge of larceny from a person, MCL 750.357; MSA 28.589. In exchange for the plea, the prosecutor dismissed the original unarmed robbery charge, MCL 750.530; MSA 28.798. The parties agreed to a sentence of three to ten years in prison.

The trial judge sentenced defendant to a prison term of IV2 to 10 years. He noted that defendant’s record was not that bad and that he had a good relationship with his family. The prosecutor did not object to the sentence. Neither party raised the subject of the sentence agreement.

About a month later, the prosecutor moved to vacate the sentence. He argued that it was a violation of the sentence agreement. The judge acknowledged that he had made a mistake. He vacated the original sentence and resentenced defendant to three to ten years. He denied defendant’s subsequent motion to vacate the second sentence.

On appeal defendant argues that the trial court did not have authority to resentence him. We agree.

A trial court’s authority to resentence a defendant is limited. It depends on whether the previously imposed sentence is invalid. People v Whalen, 412 Mich 166, 169; 312 NW2d 638 (1981). We are unable to find any authority which holds that a sentence which does not follow the sentence agreement is invalid. Even where there is a sentence agreement, the trial court is not bound by it and must still exercise discretion when imposing sentence. People v Killebrew, 416 Mich 189; 330 NW2d 834 (1982). Since defendant’s original sentence was valid, the trial court did not have authority to resentence him.

Accordingly, we vacate defendant’s sentence and remand for reinstatement of his original sentence of IVi to 10 years in prison.