(dissenting'). I respectfully dissent.
It is undisputed that defendant suffers from fetal alcohol syndrome (fas), an irreparable birth defect characterized by a cluster of symptoms caused by organic brain damage resulting from in útero exposure to alcohol, and from attention deficit disorder. Defendant has an overall IQ of eighty-four. The presentence investigation report (SIR) notes that defendant’s adoptive parents knew of his fas disability when they adopted him and “have provided him with a structured, caring environment and he has flourished.” The SIR states that defendant had no prior record, had no history of alcohol or drug abuse, finished high school in a special-education program, and was employed as a dishwasher at the time of the alleged offenses. Under “Mental and Physical Health,” the SIR states:
*177Fetal Alcohol Syndrome with Attention Deficit Disorder/Hyperactive (psychotropic medication as needed).
The physician’s [sic] treating the Respondent for this condition is Dr. Jerry Walden .... Prescribed medication Cylert in the amount of 75 milligrams per day. Dr. Paul Estenson, Clinical Psychologist .... Dates of treatment: 9/90-3/91, 7/94-Present. Respondent is currently involved in mental health counseling with the above mentioned doctor and psychologist.
The SIR, which was prepared by probation officer Gordon Martin, recommended three years’ probation, the first 120 days on tether, and outpatient therapy:
This is a first offense committed by this 21-year-old youngster and although it is among the more serious offenses set by statue [sic], the writer requests that the court consider the psychological evaluation prepared on 10/4/94 by clinical psychologist Paul Estenson ....
If we are to salvage this young individual, the writer feels that prison is not the answer. Most certainly, it is not to say that he should go unpunished, however, it should be in a way that gains (as such) in his behavior would not be disturbed. Therefore the writer is respectfully requesting that as an alternative to prison that he be placed on the home tethering program with psychotropic medication and continue his involvement in outpatient therapy
In an addendum to the SIR, senior probation agent Thomas Hiller stated:
I vehemently disagree with Mr. Martin’s recommendation in this matter.
Wybrecht could [] a threat to the general community; as a pedophile, Wybrecht will be difficult to cure and it is well documented that pedophiles may seek multiple victims.
This case alone deserves a prison sentence, both as punishment, and to, hopefully, serve as a deterrent to Wybrecht’s further predations.
*178I note that Mr. Martin did not score ov 13, however, I suspect that the victim will certainly suffer some emotional harm as the result of the crime and the court can properly consider such a probability (See People v. Girardin [165 Mich App 264; 418 NW2d 453 (1987)]).
I would recommend that the court sentence the Respondent to a three and a half year minimum, and recommend that, as a condition of parole, the Respondent complete a sex offender treatment program.
At the February 9, 1995, sentencing hearing, defense counsel urged the court to follow officer Martin’s recommendation of three years’ probation with 120 days on tether and outpatient therapy.
The court sentenced defendant to two to fifteen years’ imprisonment.
. i
Defendant’s motion for a stay of proceedings was granted by order dated February 22, 1995. The prosecution did not seek leave to appeal the trial court’s grant of defendant’s motion.
On March 10, 1995, defendant filed his responsive memorandum in support of the motion for resentencing and an evidentiary hearing, and an amended motion for a stay of execution and resentencing and an evidentiary hearing. Defendant argued that the court at sentencing had relied on inaccurate information regarding defendant’s prognosis and rehabilitative potential, i.e., the conclusions of senior probation agent Hiller that defendant is a pedophile who “will be difficult to cure and it is well documented that pedophiles may seek multiple victims.” Defendant argued that Hiller’s statement was a “professional clinical diagnosis which [Hiller] was not qualified or sufficiently informed to make”; that the probation *179statute, MCL 771.14(2)(a), (d); MSA 28.1144(2)(a), (d), does not provide for such diagnoses by agents and, in fact, confines all opinions of agents to factual information contained in the SIR; and that, as such, defendant’s right to due process in sentencing was violated. Defendant stressed that four doctors with Ph.D.’s who were experienced in work with sex offenders and the developmental^ disabled had submitted written statements that Hiller’s statement was without support and that pedophilia is not a proper diagnosis in light of defendant’s low level of mental functioning and the results of quantitative testing of defendant. Defendant argued that the court could properly modify the original sentence, which was invalid, in that a valid sentence is one imposed as an exercise of fully informed discretion. Defendant further argued that “[t]he inquiry is really whether a trial court’s misapprehension of Defendant’s, mental capabilities, coupled with the probation department’s characterization of Defendant as a ‘pedophile’ requiring incarceration supports modification of the sentence.”
Defendant attached to his amended motion several documents that were not before the court at the original sentencing, including affidavits of Drs. Estenson, Ann Streissguth, Michael Abramsky, and Steven Miller that responded to agent Hiller’s description of defendant as a pedophile. The affidavits stated that pedophilia was an improper diagnosis and that imprisonment was not only inappropriate, but would be damaging and counterproductive for defendant. Dr. Streissguth, the director of the Fetal Alcohol and Drug Unit of the University of Washington School of Medicine, averred in pertinent part:
*1802. I am very familiar with Robert Wybrecht and his family and their capacity as part of a follow-up group of over 400 individuals with fas. I also saw Rob as a three year-old child while I was lecturing at the University of Michigan on fas. He had been diagnosed with fas at that time.
3. Rob is outstanding within the follow-up group as having achieved nearly unprecedented life goals such as his regular job as a dishwasher, no previous court intervention, and no observable secondary psychological problems. We attribute this to an uncommonly positive, carefully structured home environment and the efforts of his family to provide him with the necessary support services.
4. Rob’s brain damage causes him to function at a socialization level approximating that of a 9-11 year old child. He “lives in the moment”, and has little capacity for long-term independent planning or projection. He also [] memory problems, as the area of the brain which affects this function is especially vulnerable to the brain damage which affected him in útero.
5. These qualities provide an indication that if inappropriate sexual activity did occur between Rob- and a younger child, it was limited in nature. Further, it is my opinion that if it did take place, it was situational and experimental only. In my opinion, a clinical diagnosis of pedophilia is not likely to be supportable in Rob’s case, given his level and mode of intellectual functioning.
6. Over the past years, I have conducted research involving identification, assessment and treatment of fas prisoners in the state penal system.
7. As a result of this experience, as well as my academic training, my opinion is that any prison is totally inappropriate for Robert Wybrecht. The general objective of punishment will not be met because this individual cannot and will not intellectually connect past conduct with present consequences. . . . [I]n all probability, [he] will never have an acceptable understanding of the reasons he is incarcerated.
8. Rehabilitation will be virtually impossible because if therapy is available at all, it would most likely be cognitive-type group therapy. This would almost certainly have little *181positive impact on Mr. Wybrecht and could actually be counterproductive. For an FAS individual, traditional group therapy generally causes additional confusion in a setting which will already be virtually impossible for him to function in. The cognitive ability to relate cause and effect is difficult for Mr. Wybrecht due to his brain damage.
9. Persons with FAS become targets for mental, physical, and sexual victimization within the prison population. A specific concern is the high likelihood that he will be victimized by sexual predators.
10. If he survives prison, which is questionable, the qualities which have caused him to be an example of how well FAS children can function if raised in a structured and affectionate environment, will be lost or severely minimized.
11. Further, it is very likely that he will learn and internalize deviant sexual behaviors in the prison setting. Incarcerating Mr. Wybrecht makes it much more probable that he will be a repeat sex offender than placing him back into his parents’ home.
12. If the objective of the court is to insure community safety, i.e., that this activity is not repeated, and to mete out appropriate punishment, the only feasible placement is in the structured, closely monitored home environment.
Dr. Miller, a licensed clinical psychologist and certified consulting forensic examiner who worked for the Recorder’s Court Psychiatric Clinic Certified Forensic Facility before entering private practice, averred that work with sex offenders made up a significant portion of his practice and that he had specifically evaluated and treated developmentally disabled sex offenders. Dr. Miller’s affidavit stated in pertinent part:
[T]he activity which gave rise to this offense does not meet the clinical diagnostic criteria for pedophilia. Pedophilia affects a limited sub-group of sex offenders. Among other things, this Defendant does not have sufficient emotional maturity and mental ability to be diagnosed as a pedophile.
*1826. Further, pedophilia is characterized by premeditation and planning. After review of this Defendant’s records, it is clear that the organic brain damage caused by Fetal Alcohol Syndrome excludes the possibility of such premeditation and planning. This Defendant’s memory limitations rule out the persistent sexual attraction to children outside the home which is characteristic of fixated pedophiles.
Also attached to defendant’s amended motion for resentencing was a copy of an article appearing in the February 1995 issue of Criminal Defense Newsletter: Chiaroscuro: Sex Offenders and the Clear but Obscure Possibility of Parole. The article stated that those convicted of criminal sexual conduct crimes are being paroled at a slower rate than other offenders despite the fact that the Michigan Department of Corrections’ recidivism statistics for criminal sexual conduct offenders reflect a success rate that is second highest for all offenders (79.6 percent were complete successes according to recently released mdoc statistics). The article also noted that sex offender therapy is often unavailable in Michigan prisons and stated that “[t]he critical point to be made here is that the actual term served may differ (sometimes greatly) from the minimum term originally imposed by the court, due to parole decisions.”
Defendant also submitted an affidavit of Gordon Martin, the probation officer who completed the sir, which stated that in reaching his conclusions concerning an appropriate sentence recommendation for defendant, he reviewed court records and psychological evaluations and also interviewed defendant in person. Martin further averred that, to his knowledge, no one else in the probation office interviewed defendant and that he continued to believe that his initial rec*183ommendation of three years’ probation and outpatient therapy was appropriate.
The court sentenced defendant to concurrent sentences of five years’ probation, the first ninety days in the county jail, with credit for fifty days served. Defendant was ordered, upon release from jail, to spend the next 150 days on the tether program, and to undergo outpatient therapy as recommended by the probation department. The court also ordered that defendant was to have no contact with the victim.
n
The prosecution argues that defendant’s second sentence should be vacated because defendant’s original sentence was valid and the trial court thus lacked authority to resentence defendant. However, the prosecution cites no cases involving a stay of proceedings and does not address defendant’s argument that the court had authority to resentence because defendant had not begun to serve his sentence.
A stay of proceedings suspends the execution of punishment and enforcement of a judgment. In re Dana Jenkins, 438 Mich 364, 368-369; 475 NW2d 279 (1991); 4 CJS, Appeal and Error, § 408, p 452 and § 438, p 472.1 In this regard, we note that the trial court’s order granting defendant’s motion for a stay of proceedings also ordered that defendant “shall be kept in the county jail.” Assuming arguendo that *184defendant had thus begun to serve his sentence, where an invalid sentence has been imposed, the court may grant resentencing for legally cognizable reasons, even though the illegal sentence has been partly executed. People v Erwin, 212 Mich App 55, 63; 536 NW2d 818 (1995).
Both parties agree that a trial court has authority to resentence a defendant where the original sentence was invalid. People v Whalen, 412 Mich 166, 170; 312 NW2d 638 (1981); MCR 6.429(A). The Staff Comment to MCR 6.429(A) states that “invalid sentence” “refers to any error or defect in the sentence or sentencing procedure that entitles a defendant to be resentenced or to have the sentence changed.”
Although I cannot agree fully with defendant’s argument that defendant was originally sentenced on the basis of “inaccurate” information, the circuit court had information before it at the resentencing that supports the argument that defendant’s original sentence was not individualized. Whalen, supra at 170. Because the court had stayed proceedings, it could properly grant resentencing. Erwin, supra.
I would affirm.
As a general rule, in the absence of a statute to the contrary, the court has power temporarily to postpone or to stay the execution of its sentence pending proceedings to obtain a review of the judgment, or for any other valid purpose incidentally necessary in the administration of justice. 24 CJS, Criminal Law, § 1547, pp 136-137.