People v. Susalla

309 N.W.2d 654, 107 Mich. App. 528

• Court: Michigan Court of Appeals
• Decided: July 7, 1981
• Docket: Docket No. 48379
• Status: Published

Opinions

Per Curiam.

Defendant pled guilty to embezzlement by an agent, in violation of MCL 750.174; MSA 28.371. This crime was committed during a period when defendant had escaped from furlough status¹ for a previous embezzlement conviction. For this second crime, defendant was sentenced in Detroit Recorder’s Court for imprisonment for a term of from 6 to 10 years. Defendant appeals this conviction as of right.

The single issue raised by defendant’s appeal is a violation of the 180-day rule of MCL 780.131; MSA 28.969(1).² Defendant’s claim is that the passage of over 200 days from his return to custody to his trial violated the 180-day rule and prevented the court from exercising jurisdiction, according to MCL 780.133; MSA 28.969(3).³_

While People v Moore, 96 Mich App 754; 293 NW2d 700 (1980), held that the 180-day rule specifically applies to offenses committed during incarceration, we are convinced that People v Loney, 12 Mich App 288; 162 NW2d 832 (1968), and People v Ewing, 101 Mich App 51; 301 NW2d 8 (1980), represent the better view.

Where a person incarcerated in a penal institution is convicted and sentenced for committing a crime while incarcerated or during escape or an attempt to escape, the term of sentence imposed for a crime so committed shall commence at the expiration of the sentence which the person is serving. MCL 768.7a(1); MSA 28.1030(1)(1).⁴

People v Loney, supra, expressed the opinion that the 180-day statute did not apply to the offenses committed while in prison, for which offenses mandatory consecutive sentences are to be served, reasoning:

" 'In formulating the statutory language, the legislature sought to protect those who face multiple charges against undue delay in trial when they are jailed in State prison while untried charges are still pending. The statute seeks to secure to those serving sentences in a State prison the enjoyment of the rule of law which in the absence of a statute otherwise providing, prohibits imposition of a sentence to commence upon completion or expiration of another sentence.’ People v Williams, 9 Mich App 676, 682 (1968), citing In re Carey, 372 Mich 378 (1964).

"The purpose of the statute is clear. It was intended to give the inmate, who had pending offenses not yet tried, an opportunity to have the sentences run concurrently consistent with the principle of law disfavoring accumulations of sentences. This purpose, however, does not apply in the instance of a new offense committed after imprisonment, nor where the statute, as in the case of an escape or attempted escape, sets up a mandatory consecutive sentence. The legislature was not concerning itself with the need for dispatch in the handling of a charge brought against an inmate for offenses committed while in prison.

"For the foregoing reasons, it is the opinion of this Court that the 180-day statute does not and was not intended to apply to offenses committed while in prison and for which offenses mandatory consecutive sentences are provided.” People v Loney, supra, 292-293.

The case of People v Hill, 402 Mich 272; 262 NW2d 641 (1978), is distinguishable because there the charges arose out of incidents which occurred prior to the defendant’s incarceration.

Furthermore, even if we were to assume for purposes of argument that People v Moore, supra, should be followed, we would not dismiss but would remand for an evidentiary hearing concerning the reason for the delay.

Affirmed.

1 While on furlough status, defendant resided in a "halfway house” and was subject to rules and regulations of the Department of Corrections. During this time, defendant was still considered a prisoner. See People v Mayes, 95 Mich App 188; 290 NW2d 119 (1980). See also People v Smith (On Rehearing), 89 Mich App 478; 280 NW2d 862 (1979).

2 MCL 780.131; MSA 28.969(1) provides:

"Whenever the department of corrections shall receive notice that there is pending in this state any untried warrant, indictment, information or complaint setting forth against any inmate of a penal institution of this state a criminal offense for which a prison sentence might be imposed upon conviction, such inmate shall be brought to trial within 180 days after the department of corrections shall cause to be delivered to the prosecuting attorney of the county in which such warrant, indictment, information or complaint is pending written notice of the place of imprisonment of such inmate and a request for final disposition of such warrant, indictment, information or complaint. The request shall be accompanied by a statement setting forth the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time earned, the time of the parole eligibility of the prisoner and any decisions of the parole board relating to the prisoner. The written notice and statement provided herein shall be delivered by certified mail.”

3 MCL 780.133; MSA 28.969(3) provides:

"In the event that, within the time limitation set forth in section 1 of this act, action is not commenced on the matter for which request for disposition was made, no court of this state shall any longer have jurisdiction thereof, nor shall the untried warrant, indictment, information or complaint be of any further force or effect, and the court shall enter an order dismissing the same with prejudice.”

4 MCL 768.7a(1); MSA 28.1030(1)(1) provides:

"A person who is incarcerated in a penal or reformatory institution in this state, or who escapes from that institution, and who commits a crime during that incarceration or escape which is punishable by imprisonment in a penal or reformatory institution in this state shall, upon conviction thereof, be subject to sentence therefor in the manner provided by law for such crimes. The term of sentence imposed for the crime shall commence at the expiration of the term or terms of sentence which the person is serving or has become liable to serve in a penal or reformatory institution in this state.”