Opinion
Docket Nos. 73914, 73915, 74440.
Decided March 20, 1985.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, John D. O'Hair, Prosecuting Attorney, Edward Reilly Wilson, Deputy Chief, Civil and Appeals, and Carolyn Schmidt, Assistant Prosecuting Attorney, for the people.
Robert E. Slameka, for Ricky C. Larkins.
Norman R. Robiner, for Stephen Jeter.
Robert L. McClinton, for Erik Barnes.
Following a bench trial, defendants, Ricky C. Larkins, Stephen Jeter, and Erik Barnes were convicted of armed robbery, MCL 750.529; MSA 28.797. Each defendant was sentenced to a term of 5 years' probation with the first 90 days to be served in jail. The prosecutor now appeals the sentences imposed by the trial court.
A prosecutor has no right to appeal outside the express provisions of MCL 770.12; MSA 28.1109. People v Cooke, 419 Mich. 420; 355 N.W.2d 88 (1984). Since the Legislature provided no express authorization for appeals by the prosecution from sentences, valid or invalid, the prosecution has no authority to appeal the trial court's sentencing order in this case. People v Wilkins, 121 Mich. App. 813, 816; 329 N.W.2d 500 (1982). Nevertheless, because we are persuaded that review is clearly warranted in this case, we exercise our discretionary authority under GCR 1963, 820.1(7) and consider the prosecution's claim of appeal as a complaint for an order of superintending control. GCR 1963, 711.4(a). Placing defendants on probation was a void act since the lower court had no statutory authority to do so. People v Davis, 392 Mich. 221, 226-227; 220 N.W.2d 452 (1974). See also MCL 771.1(1); MSA 28.1131(1). Since the purported placing of defendants on probation was a nullity, the matter with respect to each defendant returns to the status quo ante. As a consequence, each sentence is reversed with a remand to the lower court for new sentencing.
Reversed and remanded.