Opinion
Docket No. 67506.
Decided July 20, 1982.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Edward J. Grant, Prosecuting Attorney, and Brian E. Thiede, Chief Appellate Attorney, for the people.
State Appellate Defender (by Sheila N. Robertson), for defendant on appeal.
Upon his plea of guilty, defendant was convicted of attempted entering or breaking into a motor vehicle, MCL 750.356a; MSA 28.588(1); MCL 750.92; MSA 28.287. Defendant was sentenced to six months in the county jail and ordered to pay court costs of $1,000 or spend an additional six months in jail. On appeal, defendant challenges the validity of his sentence.
Defendant argues that the sentence given him was not authorized by statute. The prosecutor argues that the sentence was authorized by MCL 769.3; MSA 28.1075, which states in part:
"When any persons shall be convicted of an offense punishable at the discretion of the court, either by fine or imprisonment in the county jail or by a fine or imprisonment in the state prison, the court may award against such offender a conditional sentence and order him to pay a fine, with or without the costs of prosecution, within a limited time to be expressed in the sentence, and, in default thereof, to suffer such imprisonment as is provided by law and awarded by the court."
Because defendant was convicted of an offense punishable by either fine or imprisonment, the sentencing judge could have imposed a conditional sentence and ordered him to pay a fine, with or without costs, within a limited time expressed in the sentence. In the present case, no fine was imposed. Under the statute, costs may be assessed only where a fine is imposed. The alternative sentence of jail or costs is, therefore, not authorized by the statute. Because the court's sentencing authority is confined to the limits permitted by the statute under which it acts, the alternative sentence imposed on defendant is invalid. See In re Callahan, 348 Mich. 77, 80; 81 N.W.2d 669 (1957). The order to defendant to pay court costs of $1,000 or serve an additional six months in jail is vacated because it is an attempt to impose an invalid sentence.
We also note that any conditional sentence imposed under MCL 769.3; MSA 28.1075 must express a limited time in which the fine (with or without the costs of prosecution) may be paid. Absent such a provision, a conditional sentence does not comply with the statute.
We decline to address defendant's constitutional claim and his claim for additional credit for time served prior to the imposition of his sentence. We need not reach the first issue. The second issue is moot, due to our decision to vacate the remainder of defendant's sentence.
That part of defendant's sentence requiring him to pay $1,000 in court costs or serve an additional six months in jail is vacated.