Opinion
No. 119455.
December 27, 2001.
COA: 232411, Oakland CC: 96-146347-FH
On order of the Court, the delayed application for leave to appeal from the April 19, 2001, order of the Court of Appeals is considered, and, pursuant to MCR 7.302(F)(1), in lieu of granting leave to appeal, we VACATE the July 11, 1997, Judgment of Sentence and we REMAND this case to the trial court for a resentencing.
The sentence of 2 to 20 years in prison violates the requirements of MCL 750.335a and MCL 750.10a, the statutes under which the defendant was convicted. Although a sentence of probation can be imposed on a conviction of being a sexually delinquent person, since neither the indecent exposure statute nor the sexually delinquent person statute contain any statement affecting the availability of probation, and the offense of being a sexually delinquent person isn't listed as an exception to the otherwise inclusive application of the probation statute, MCL 771.1(1), there is no alternative to the mandatory indeterminate sentence of one day to life in prison where the trial court chooses to incarcerate a person convicted under MCL 750.335a and MCL 750.10a. In all other respects, leave to appeal is DENIED, because the defendant has failed to meet the burden of establishing entitlement to relief under MCR 6.508(D).
We do not retain jurisdiction.