People v. Resler

532 N.W.2d 907, 210 Mich. App. 24

• Court: Michigan Court of Appeals
• Decided: April 21, 1995
• Docket: Docket 162504
• Status: Published

Opinions

Michael J. Kelly, P. J.

Defendant pleaded guilty of embezzlement over $100, MCL 750.174; MSA 28.371. The trial court sentenced him to five years’ probation with the first year in jail. Defendant was awarded sixty days of good-time credit by the sheriff under MCL 51.282(2); MSA 5.883(2)(2). Soon after his release from jail, defendant was found guilty of violating the terms of his probation and was sentenced to five to ten years’ imprisonment. The trial court allowed defendant credit only for the time he actually had actually served in jail on the embezzlement charge. In this appeal of right, defendant argues that he was entitled to credit for the sixty days of good time granted by the sheriff. We agree.

Defendant bases his argument on double jeopardy grounds. The Double Jeopardy Clauses of the United States and Michigan Constitutions¹ guarantee against multiple punishments for the same offense. This guarantee "absolutely requires that punishment already exacted must be fully 'credited* in imposing sentence upon a new conviction for the same • offense.” North Carolina v Pearce, 395 US 711, 718-719; 89 S Ct 2072; 23 L Ed 2d 656 (1969).

In People v Whiteside, 437 Mich 188; 468 NW2d 504 (1991), our Supreme Court summarized the current view of double jeopardy. There, the Court held that the prohibition on double jeopardy is not a check on the Legislature’s power to define crime and fix punishment. Id. at 200-201. The Legislature may provide for the revocation of good-time credit without fear that its act would offend double jeopardy guarantees. See id. at 199, n 17, quoting United States v DiFrancesco, 449 US 117, 137; 101 S Ct 426; 66 L Ed 2d 328 (1980). Our Legislature has already done so in the parole context. Under MCL 791.238(6); MSA 28.2308(6), a paroled prisoner is considered to be serving out the sentence imposed by the court and may be awarded good time, just as if the parolee had been confined in the institution. However, if the prisoner violates parole, the parole board may cause the forfeiture of all good time accumulated up to the date of the violation. MCL 791.238(4); MSA 28.2308(4).

While the Double Jeopardy Clause does not prohibit revocation of good-time credit per se, it does restrict a court’s authority to impose punishment in excess of the intent of the Legislature. The basic inquiry is whether the total punishment imposed exceeds that authorized by the Legislature. Whiteside, supra at 201. In this case, the Legislature has not provided for the revocation of good-time credit in the context of conditional probation, as it has done in the parole context. There is no statutory provision evidencing a legislative intent to allow such revocation. The trial court therefore exceeded its authority under the Double Jeopardy Clause to take away what was already given to defendant. Defendant is entitled to keep what he has earned.

We reject the prosecution’s suggestion that defendant has not even "earned” anything that is protected by the Double Jeopardy Clause. There are numerous Michigan cases addressing credit for time spent "in jail” or "in confinement” under a variety of circumstances. See, e.g., Whiteside, supra at 202 (not allowing probationer credit for time spent in a substance abuse program); People v Wagner, 193 Mich App 679, 682; 485 NW2d 133 (1992) (not allowing probationer credit for time spent in a boot camp). See also People v Sturdivant, 412 Mich 92, 96-97; 312 NW2d 622 (1981); People v Smith, 143 Mich App 782, 787; 372 NW2d 660 (1985); People v Shipp, 141 Mich App 610, 614; 367 NW2d 430 (1985); People v Stange, 91 Mich App 596, 599; 283 NW2d 806 (1979); People v Gravlin, 52 Mich App 467, 469; 217 NW2d 404 (1974). While the lead cases held that boot camp and rehabilitation programs do not constitute "time served in jail” for purposes of double jeopardy, they do not address the status of good-time credit. We believe that good-time credit can fall within the ambit of the Double Jeopardy Clause. Unlike boot camps and rehabilitation programs, which are alternatives to incarceration that are available to the sentencing court, good-time credit effectively takes the place of jail time already imposed as part of a sentence. We also reject the prosecution’s reading of the Sturdivant and White-side opinions as affording double jeopardy protection only to time actually served in jail. Nowhere in those opinions does the term "actually” modify "time served.” Nor do the opinions make any such suggestion.

Our holding is bolstered by the United States Supreme Court’s opinion in Pearce, supra at 718-719. There, the Court held "that the constitutional guarantee against multiple punishments for the same offense absolutely requires that punishment already exacted must be fully 'credited’ in imposing sentence upon a new conviction for the same offense.” Id. In dicta, the Court added that credit for punishment already exacted "must, of course, include the time credited during service of the first prison sentence for good behavior, etc.” Id. at 719, n 13. Though not reaching the precise issue presented in this case, our Supreme Court held in Sturdivant, supra at 97, that the principles set forth in Pearce apply to the situation in which the initial period of incarceration is a condition of probation.

In short, we hold that the constitutional guarantee against multiple punishments contemplates protection for good-time credit, but that the ultimate decision of whether such protection applies— that is, whether the good-time credit may be revoked — lies in the discretion of the Legislature. Absent legislative authority, a sentencing court may not revoke good-time credit that a defendant already has earned while serving a jail sentence as a condition of probation.

Because the amount of good-time credit received by defendant is undisputed, we order that his sentence be amended to reflect an additional credit of sixty days against his sentence for probation violation. MCR 7.216(A)(1) and (7); Brinson v Gene-see Circuit Judge, 403 Mich 676, 687; 272 NW2d 513 (1978).

Affirmed as modified.

Fitzgerald, J., concurred.

1 US Const, Am V, provides, in pertinent part: "[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb . . . .” Const 1963, art 1, § 15, provides, in pertinent part: "No person shall be subject for the same offense to be twice put in jeopardy.”