PEOPLE
v.
BINIECKI
Docket No. 9032.
Michigan Court of Appeals.
Decided July 28, 1971.Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William F. Delhey, Prosecuting Attorney, and Jerome D. Farmer, II, Assistant Prosecuting Attorney, for the people.
Keusch & Flintoft, for defendant.
*336 Before: McGREGOR, P.J., and T.M. BURNS and ANDREWS,[*] JJ.
Leave to appeal denied, 387 Mich 764.
PER CURIAM.
Defendant, while serving a prison sentence at Cassidy Lake, took French leave. Upon his plea of guilty to the charge of escape,[1] he was given a sentence of one year. Soon after his return to prison the corrections commission informed the trial judge that the sentence was invalid under MCLA § 769.28 (Stat Ann 1971 Cum Supp § 28.1097 [1]). Thereupon the defendant was returned to the trial court and, over objection, the sentence was changed to provide for a minimum term of one year and a maximum term of five years.
The defendant claims that the one-year sentence first imposed is valid and cannot be changed citing: People v. Parson (1956), 345 Mich 727; Elliot v. Department of Corrections (1955), 343 Mich 681; People v. Chivas (1948), 322 Mich 384; In re Richards (1907), 150 Mich 421. We agree.
Contrary to the contention of the people and the apparent position of the corrections commission, the indeterminate sentence act[2] does not apply to the offense of escape from prison, In re Wilson (1940), 295 Mich 179, as is apparent from the language of the two statutes. The escape from prison act provides for "further imprisonment for not more than five years * * * to be served after the termination * * * of any sentence * * * then being served". (Emphasis supplied.) The indeterminate act provides, "When any person shall hereafter be committed for the first time * * * the court * * * shall not fix a definite term of imprisonment, but shall fix a minimum term * * *". (Emphasis supplied.) The escape from prison act *337 clearly requires a consecutive sentence which can be for a period of not more than five years.
MCLA § 769.28 (Stat Ann 1971 Cum Supp § 28.1097[1]) has no application here. It applies by its very terms to offenses which carry a maximum penalty of one year or less.
Remanded for reinstatement of original sentence.
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment.
[1] MCLA § 750.193 (Stat Ann 1971 Cum Supp § 28.390).
[2] MCLA § 769.8 (Stat Ann 1954 Rev § 28.1080).