People v. Shell

Michigan Court of Appeals

People v. Shell

503 N.W.2d 711, 200 Mich. App. 160, 1993 WL 195394

CourtMichigan Court of Appeals

DecidedJune 8, 1993

DocketDocket 133229

StatusPublished

Cited by2 cases

This text of 503 N.W.2d 711 (People v. Shell) 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. Shell, 503 N.W.2d 711, 200 Mich. App. 160, 1993 WL 195394 (Mich. Ct. App. 1993).

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Opinion

Per Curiam.

Defendant was convicted after a *161 jury trial of assault with intent to commit murder, MCL 750.83; MSA 28.278, and was sentenced to life in prison. Defendant appeals, contending that his sentence is disproportionately severe. We reverse and remand.

Defendant’s sentence exceeds the minimum sentence range of 96 to 180 months provided by the guidelines for this offense. While the sentencing court was not bound by the guidelines, the record indicates that the sentencing court believed that, because defendant would be eligible for parole within ten years, defendant was being sentenced within the guidelines. A sentence that exceeds the guidelines is not within the guidelines merely because the time at which the defendant becomes eligible for parole coincides with a point within the range provided by the guidelines. We are unaware of any requirement in the sentencing guidelines for the consideration of a defendant’s eligibility for parole, nor has this factor traditionally been considered when determining whether a sentence is within the guidelines. This is in keeping with the premise that it is improper to increase a defendant’s sentence on the basis of an anticipated reduction of the sentence for good time. 1 See, e.g., People v Fleming, 428 Mich 408, 425-427; 410 NW2d 266 (1987); People v Bates, 190 Mich App 281, 283; 475 NW2d 392 (1991). Because the sentencing court erroneously believed that the defendant was being sentenced within the guidelines, we reverse and remand for resentencing. We do not reach the issue whether defendant’s sentence is proportionate.

Reversed and remanded for resentencing. We do not retain jurisdiction._

1

As did our Supreme Court in People v Rushlow, 437 Mich 149, 155-156; 468 NW2d 487 (1991), we distinguish the consideration of "good time” in imposing a sentence from the consideration of disciplinary credits when determining whether a sentence violates People v Moore, 432 Mich 311; 439 NW2d 684 (1989).

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Per Curiam.

Defendant was convicted after a *161 jury trial of assault with intent to commit murder, MCL 750.83; MSA 28.278, and was sentenced to life in prison. Defendant appeals, contending that his sentence is disproportionately severe. We reverse and remand.

Defendant’s sentence exceeds the minimum sentence range of 96 to 180 months provided by the guidelines for this offense. While the sentencing court was not bound by the guidelines, the record indicates that the sentencing court believed that, because defendant would be eligible for parole within ten years, defendant was being sentenced within the guidelines. A sentence that exceeds the guidelines is not within the guidelines merely because the time at which the defendant becomes eligible for parole coincides with a point within the range provided by the guidelines. We are unaware of any requirement in the sentencing guidelines for the consideration of a defendant’s eligibility for parole, nor has this factor traditionally been considered when determining whether a sentence is within the guidelines. This is in keeping with the premise that it is improper to increase a defendant’s sentence on the basis of an anticipated reduction of the sentence for good time. 1 See, e.g., People v Fleming, 428 Mich 408, 425-427; 410 NW2d 266 (1987); People v Bates, 190 Mich App 281, 283; 475 NW2d 392 (1991). Because the sentencing court erroneously believed that the defendant was being sentenced within the guidelines, we reverse and remand for resentencing. We do not reach the issue whether defendant’s sentence is proportionate.

Reversed and remanded for resentencing. We do not retain jurisdiction._

1

As did our Supreme Court in People v Rushlow, 437 Mich 149, 155-156; 468 NW2d 487 (1991), we distinguish the consideration of "good time” in imposing a sentence from the consideration of disciplinary credits when determining whether a sentence violates People v Moore, 432 Mich 311; 439 NW2d 684 (1989).

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Bluebook (online)

503 N.W.2d 711, 200 Mich. App. 160, 1993 WL 195394, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-shell-michctapp-1993.

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