Opinion
Docket No. 81748.
Decided October 22, 1985.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, James J. Gregart, Prosecuting Attorney, and Patricia N. Conlon, Assistant Prosecuting Attorney, for the people.
Milton J. Marovich, P.C. (by Milton J. Marovich), for defendant.
Before: ALLEN, P.J., and R.B. BURNS and MacKENZIE, JJ.
Pursuant to a plea bargain under which the prosecution agreed not to file a fourth felony offender charge and to make no recommendation as to sentence, defendant pled guilty to a charge of breaking and entering an unoccupied building as a third offender. On May 14, 1984, defendant was sentenced to a term of 15 years minimum and 20 years maximum. In imposing sentence the trial court explained that because defendant was a third offender the maximum penalty was increased to 20 years and "the application of what is referred to as the two-thirds Tanner Rule" was removed.
Defendant moved to withdraw the guilty plea and a hearing was held October 1, 1984, at which the court explained that the question of whether an indeterminate sentence is subject to the two-thirds rule of People v. Tanner, 387 Mich. 683; 199 N.W.2d 202 (1972), had yet to be addressed "and that's why I'm putting all this on the record, so whatever panel looks at this decision can see what my thinking was, and if they tell me I'm wrong, that's fine".
Sixteen days later, our Court, in People v. Stevens, 138 Mich. App. 438; 360 N.W.2d 216 (1984), told the respected trial judge he was wrong. The Court held:
"* * * the sentences of those charged and convicted as habitual offenders are to be indeterminate as that term was defined in Tanner." 138 Mich. App. 443.
We agree with the Stevens panel and are not persuaded that Stevens was wrongly decided. Accordingly, we vacate the sentence imposed and remand this matter back to the trial court for resentencing or to allow defendant to withdraw his plea of guilty.