People v. Hacker

Per Curiam.

The pertinent facts are set forth in Judge Maher’s dissent and will not be repeated here.

Defendant’s argument on appeal is that his delayed sentencing pursuant to MCL 771.1(2); MSA 28.1131(2) was tantamount to being placed on probation. Therefore, defendant asserts, his first breaking and entering conviction was no longer pending within. the meaning of the consecutive sentencing proviso, MCL 768.7b; MSA 28.1030(2), when he committed the second breaking and entering.

In People v Mayes, 78 Mich App 618, 621; 261 NW2d 22 (1977), this Court held that a charge is deemed pending within the meaning of MCL 768.7b; MSA 28.1030(2) until a defendant is sentenced. In People v Leal, 71 Mich App 319, 321; 248 NW2d 252 (1976), lv den 399 Mich 821 (1977), this Court held that a defendant is sentenced *799when placed on probation. Once placed on probation, the disposition of that case is no longer pending.

Deferred sentencing pursuant to MCL 771.1; MSA 28.1131 is not equivalent to being placed on probation. In People v Saylor, 88 Mich App 270, 275; 276 NW2d 885 (1979), this Court said that a delayed sentence means no sentence is initially imposed even though the trial court may impose conditions upon the defendant. See also People v Clyne, 36 Mich App 152, 155; 193 NW2d 399 (1971). The imposition of those conditions is not construed as tantamount to placing the defendant on probation. Clyne, supra. Therefore, defendant was not yet sentenced for his first breaking and entering conviction when he committed the second offense; disposition of his first case was pending.

Because defendant’s first B & E charge was still pending, the consecutive sentencing proviso clearly applies. The language of the statute is mandatory; once a defendant commits a subsequent felony offense when a felony charge is pending, the consecutive sentencing option "shall” apply. Whether that option is imposed as a condition of the sentence for the second or subsequent felony conviction is discretionary with the trial court.

Not only is the language of MCL 768.7b; MSA 28.1030(2) clear and mandatory, but, unlike Judge Maher, we find that § 7b does not impose additional deterrents in this case. While a defendant given delayed sentencing has an incentive to stay on the right side of the law, that incentive cannot be equated with the deterrence intended by § 7b. The purposes of the two statutes at issue, as indicated in the dissenting opinion, are not the same. A defendant given a delayed sentence still faces a possible maximum term for his or her *800conviction dependent upon many conditions, only one of which is that of avoiding a subsequent felony charge.

Should the dissent’s rationale be applied to defendants given delayed sentences, this Court would be interpreting § 7b in a manner that would abrogate the statute’s intended deterrent effect rather than liberally construing it. See Mayes, supra, p 621. The defendant would again have the security of knowing that, if convicted of the second felony, the sentence on the second conviction would run concurrently with the first sentence. See People v Henry, 107 Mich App 632; 309 NW2d 922 (1981).

For the foregoing reasons, we affirm.