People v. Leske
People v. Leske
Opinion of the Court
Defendant pled guilty of breaking and entering an unoccupied building, MCL 750.110; MSA 28.305, and was sentenced to five years’ probation. One of the conditions of defendant’s probation was that he complete a residential halfway house program called New Paths. Defendant subsequently violated his probation by, among other things, leaving New Paths without permission. Defendant pled guilty of the probation violation and was sentenced to five to ten years in prison. The trial court refused to grant defendant credit for the 133 days he spent in the New Paths program. Defendant appeals as of right, raising three issues related to his sentencing.
Defendant first argues that the trial court improperly denied him credit for the time spent in New Paths. We disagree.
The question whether a defendant is entitled to credit for time spent in a residential halfway house was most recently discussed in People v Morin, 159 Mich App 582; 407 NW2d 43 (1987). In Morin, the defendant was convicted of larceny and was sentenced to five years’ probation. The probation order required the defendant to reside at Rubicon/Odyssey House, a state-licensed residential drug rehabilitation program. After the defendant left the facility without permission, he was ordered to reside at Bay Fresh Start, a residential halfway house. When the defendant again violated the terms of his probation, he was sentenced to a prison term. The defendant was not given credit for the time spent at either residential facility.
In analyzing the issue whether the defendant should have received credit for the time spent in the programs, the Morin Court first rejected the
Instead of relying on the sentencing credit statute to resolve the issue, the Morin Court looked to the probation revocation provision of the Code of Criminal Procedure, MCL 771.4; MSA 28.1134, which states in relevant part:
It is the intent of the legislature that the granting of probation shall be a matter of grace conferring no vested right to its continuance. ... If a probation order is revoked, the court may proceed to sentence the probationer in the same manner and to the same penalty as the court might have done if the probation order had never been made.
The Morin Court stated that this provision "evinces a legislative intent to permit, upon revocation of probation, the imposition of full punish
The Morin Court concluded, on the basis of its assessment of the Legislature’s intent as evinced in MCL 771.4; MSA 28.1134, that required residence at "rehabilitative centers” need not be credited against a subsequent prison sentence, and that such a result does not violate the Double Jeopardy Clause. Id., p 589. The Court decided that the defendant’s residency at the Rubicon/Odyssey House was clearly rehabilitative, so the defendant was not entitled to credit for time spent in that facility. However, the record was insufficient to assess whether the time spent at Bay Fresh Start was for "structured rehabilitation and treatment” or "mere incarceration.” Id., p 590. Therefore, the Court remanded for development of the record detailing the purpose of the program, the restrictions placed on the defendant, and the trial court’s intended purpose in ordering the defendant’s residence there. Id., pp 589-590.
We agree with the Morin Court’s determination that, while the Double Jeopardy Clause mandates credit for time served in jail, it does not require credit for time spent in residence at a rehabilitative facility. We also agree that a drug rehabilita
We realize that this decision is contrary to earlier decisions of this Court involving similar residential halfway house programs. See, for example, People v Greene, 145 Mich App 580; 378 NW2d 553 (1985); People v Burton Smith, 143 Mich App 782; 372 NW2d 660 (1985); People v Winchell, 143 Mich App 164; 371 NW2d 514 (1985). Each of those cases rested in part on a liberal construction of the sentencing credit statute. See Winchell, p 169 ("In view of our duty to construe the jail credit statute liberally, we believe that, for purposes of the stat
Defendant next contests the length of his sentence, and he argues that the trial court should have applied the sentencing guidelines in sentencing him for the probation violation. We have previously held that the sentencing guidelines do not apply to probation violations. People v Young, 181 Mich App 728, 731; 450 NW2d 43 (1989); People v Reeves, 143 Mich App 105, 107; 371 NW2d 488 (1985). However, because defendant has raised the issue of sentence length, we remand for resentencing under the proportionality standard announced in People v Milbourn, 435 Mich 630; 461 NW2d 1 (1990).
Remanded for resentencing consistent with this opinion. We do not retain jurisdiction.
We agree that the sentencing credit statute does not apply in this situation. But we base our determination on the fact that the defendants in these cases were not jailed "because of being denied or unable to furnish bond.” Rather, they were ordered to the residential program pursuant to the terms of their probations.
Concurring in Part
(concurring in part and dissenting in part). I disagree that time spent in a halfway house is not tantamount to confinement in jail for purposes of the sentencing credit statute, MCL 769.11b; MSA 28.1083(2). See People v Greene, 145 Mich App 580; 378 NW2d 553 (1985);
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