Opinion
No. 112304;.
April 30, 1999.
Leave to Appeal Denied April 30, 1999:
Court of Appeals No. 210223.
I concur in the decision to deny leave to appeal because the case is moot in view of defendant's decision to undergo a tubal ligation. I write separately, however, to point out that the sentencing court's order compelling defendant to use Depo-Provera or Norplant was an unlawful condition of probation. Under MCL 771.3(4); MSA 28.1133(4), the court "may impose other lawful conditions of probation as the circumstances of the case require or warrant or as in its judgment may be proper." In People v. Gauntlett, 134 Mich. App. 737 (1984), the Court of Appeals held that a condition of probation requiring a sex-offender to submit to Depo-Provera treatment was unlawful and invalid. In lieu of granting leave to appeal in Gauntlett, this Court modified the judgment of the Court of Appeals, stating:
[A]fter finding "that the condition of defendant's probation, that he submit to Depo-Provera treatment, is clearly an unlawful condition of probation and invalid under MCL 771.3(4); MSA 28.1133(4)," the Court of Appeals should have remanded the case, without further direction, to the Kalamazoo Circuit Court for resentencing. [ 419 Mich. 909 (1984).]
In the instant case, the trial court ordered defendant, who pleaded nolo contendere to second-degree child abuse, to use Norplant or Depo-Provera as a method of birth control during the term of probation. That condition of probation was clearly unlawful and invalid under MCL 771.3(4); MSA 28.1133(4).
CAVANAGH, J.
I join in the statement of Justice CORRIGAN.