Opinion
Docket No. 81907.
Decided October 7, 1985. Leave to appeal denied, 424 Mich ___.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Judy H. Hughes, Prosecuting Attorney, and Michael A. Nickerson, Assistant Attorney General, for the people.
State Appellate Defender (by Sheila N. Robertson and Fred Bell), for defendant on appeal.
Before: J.H. GILLIS, P.J., and BRONSON and M.J. KELLY, JJ.
Defendant was convicted in 1981, on his plea of guilty, of attempted malicious destruction of a building over $100. MCL 750.380; MSA 28.612 and MCL 750.92; MSA 28.287. On June 5, 1981, defendant was sentenced to four years' probation with the first year to be served in the county jail.
In 1984, defendant pled guilty to having failed to report to probation authorities for three consecutive months. He was sentenced to an additional year of probation and to 365 days in jail with credit for 334 days served. Defendant appeals as of right and we affirm.
The sole issue on appeal concerns the maximum length of any probation sentence which may be imposed upon the defendant. Pursuant to §§ 92, 380 and 503 of the Michigan Penal Code, MCL 750.1 et seq.; MSA 28.191 et seq., the offense for which defendant was originally convicted constitutes a two-year misdemeanor. Under the Code of Criminal Procedure, MCL 760.1 et seq.; MSA 28.841 et seq., probation sentences imposed for "an offense which is not a felony" may not exceed two years. MCL 771.2; MSA 28.1132. However, elsewhere in the Code of Criminal Procedure the term felony is defined as any offense punishable by a term of imprisonment exceeding one year. MCL 761.1(g); MSA 28.843(g). Thus, this case again calls into question the relationship between circuit court misdemeanors as defined in the Michigan Penal Code and felonies and misdemeanors as defined in the Michigan Code of Criminal Procedure.
As the parties are well aware, this issue has arisen in a variety of contexts and is the subject of a split of authority in this Court. Contrast People v. Comstock, 139 Mich. App. 276; 361 N.W.2d 792 (1984), People v. DeLong, 128 Mich. App. 1; 339 N.W.2d 659 (1983), and People v. Reuther, 107 Mich. App. 349; 309 N.W.2d 256 (1981), with People v. Frost, 120 Mich. App. 328; 328 N.W.2d 44 (1982), and People v. Alford, 104 Mich. App. 255; 304 N.W.2d 541 (1981). Fortunately, resolution of this split is forthcoming as the Supreme Court has granted leave to appeal in three cases wherein the parties "are directed to include among the issues briefed whether a crime designated by the Penal Code as a misdemeanor punishable by two years in prison may be treated as a felony for purposes of the Code of Criminal Procedure in permitting sentence enhancement for habitual offenders". People v. Timothy Smith, 419 Mich. 922 (1984).
Notwithstanding the Supreme Court's grant of leave in these cases, this Court must, in the interest of judicial economy and fairness to the parties, proceed to resolve cases that are currently before it. A majority of judges on this panel have agreed that two-year misdemeanors under the Penal Code are felonies for purposes of the various provisions of the Code of Criminal Procedure. As applied in this case, our ruling means that the maximum length of any probation sentence that may be imposed upon defendant is five years and the trial court thus did not err in sentencing defendant as it did.
Affirmed.
J.H. GILLIS, P.J., concurred.
For the reasons set forth in my partial concurring opinion in People v. Reuther, 107 Mich. App. 349, 353-359; 309 N.W.2d 256 (1981), I respectfully dissent from Judge KELLY'S opinion.