People v. Williams

237 N.W.2d 545, 65 Mich. App. 531, 1975 Mich. App. LEXIS 987

Opinions

Bronson, J.

Defendant was found guilty by a jury of second-degree murder, contrary to MCLA 750.317; MSA 28.549, and sentenced to a prison term of from 10 to 20 years. That conviction was reversed by this Court in People v Williams, 26 Mich App 218; 182 NW2d 347 (1970). Defendant was released from custody on bond in September, 1970, and he remained free on bond until a new trial was held on May 21, 1972. At that new trial, the jury found defendant guilty of manslaughter, contrary to MCLA 750.321; MSA 28.553. Defendant was sentenced to a prison term of from 7-1/2 to 15 years, with a credit for 635 days served in Wayne County Jail.

On July 16, 1973, after he had served a portion of his sentence, defendant petitioned the trial court to reduce his sentence. The trial court granted that petition, and entered an order on August 13, 1973, giving defendant credit for the time spent while on bond awaiting retrial, 1,218 days. The Department of Corrections refused to recognize that extra credit. Consequently, the trial judge sua sponte granted defendant a new trial on September 12, 1974, the date defendant would have been released, with his good time credits, had the corrections commission recognized the modified amount of credit. The trial judge then dismissed the charges.

The people argue that the trial judge improperly modified defendant’s original sentence. We agree. It is well-established that a sentencing court does not have the power or authority to change a validly imposed sentence once a defendant begins serving it. People v Biniecki, 35 Mich App 335; 192 NW2d 638 (1971), Moore v Parole Board, 379 Mich ; 154 NW2d 437 (1967), People v Parson, 345 Mich 727, 730; 76 NW2d 805 (1956), Elliot v Department of Corrections, 343 Mich 681, 691; 73 NW2d 298 (1955), People v Chivas, 322 Mich 384, 395-396; 34 NW2d 22 (1948), People v Fox, 312 Mich 577; 20 NW2d 732; 168 ALR 703 (1945). While a sentencing judge may correct a void sentence, In re Lemire, 360 Mich 693; 105 NW2d 37 (1960), no claim is made here that defendant’s original sentence was invalid in any way.

The trial judge’s subsequent dismissal of charges upon a sua sponte granting of a new trial was also improper. MCLA 770.1; MSA 28.1098 authorizes a trial court to grant a new trial when "it shall appear to the court that justice has not been done”. However, we cannot read the grant of authority as allowing a sentencing judge to accomplish indirectly, through a delayed motion for a new trial, what he cannot do directly. If the Legislature had intended to overrule such a well-established rule it certainly would have done so expressly. Therefore, we hold that a sentencing judge cannot use the vehicle of a new trial to "correct” a validly imposed sentence.

We have serious doubts as to the power of a sentencing judge to grant credit in the first place for the time a defendant was out on bond awaiting trial. However, due to our disposition of this case, we need not reach that issue here.

Reversed and remanded, with instructions that the trial judge reinstate the original sentence and order defendant’s return to prison.

J. H. Gillis, P. J., concurred.