The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us)



STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL


Opinion No. 5208

June 30, 1977

PRISONS AND PRISONERS:

Good time statute.

CRIMES AND OFFENSES:

Mandatory prison sentence for committing or attempting to commit a felony while in possession of a firearm.

FIREARMS:

Mandatory prison sentence for committing or attempting to commit a felony while in possession of a firearm.

A person who receives a mandatory sentence for being in possession of a firearm when committing or attempting to commit a felony is not entitled to receive a reduction from such sentence by virtue of the good time law. Such convicts must serve the full, mandatory sentence imposed upon them.

A person who receives a mandatory sentence for being in possession of a firearm when committing or attempting to commit a felony and, in addition, receives an indeterminate sentence for conviction of a crime which is to be served consecutively, must serve the full mandatory sentence for possessing the firearm before earning good time credits on his second sentence. He may not receive credit for time served on the mandatory sentence for the purpose of earning good time credits at the accelerated rate.

Perry M. Johnson

Director

Department of Corrections

Stevens T. Mason Building

Lansing, Michigan 48913

You recently sought my opinion with regard to a statute enacted last year [1976 PA 6; MCLA 750.227b; MSA 28.424(2)] which imposes a mandatory 2 year prison sentence upon 'a person who carries or has in his possession a firearm at the time he commits or attempts to commit a felony . . .'

1931 PA 328, Sec. 227b, supra, as added by 1976 PA 6 provides that persons so armed and convicted 'shall be imprisoned' for not less than 2 years for the first such offense, not less than 5 years for a second offense, and not less than 10 years for a third offense. The mandatory sentence is to be imposed in addition to the sentence imposed for the conviction of the felony or attempted felony. The sentence thus imposed 'shall not be suspended. The person subject to the sentence . . . shall not be eligible for parole or probation during the mandatory term . . .'

Your letter, while asking me to comment about the procedure the Department of Corrections plans to use for computing the release date of persons receiving mandatory sentences pursuant to said Act 6, raises a basic question which must first be considered. The question is:

Is a person who receives a mandatory 2 year prison sentence pursuant to 1976 PA 6 for having a firearm in his possession at the time he commits or attempts to commit a felony entitled to have that sentence reduced pursuant to the terms of Michigan's 'good times statute'?

While 1931 PA 328, Sec. 227b, supra, decrees mandatory sentences for conviction of a felony for being in possession of a firearm, Michigan's 'good time' statute, 1893 PA 118, Sec. 33, amended by 1953 PA 105; MCLA 800.33; MSA 28.1403, provides that for good conduct every prisoner is to receive graduated monthly reductions from sentences being served.

The 'good time' statute provides in pertinent part as follows:

'. . . [E]very convict who shall have no infraction of the rules of the prison or the laws of the state recorded against him, shall be entitled to and shall receive a reduction from his sentence as follows: During the first and second years of his sentence, 5 days for each month; during the third and fourth years, 6 days for each month; during the fifth and sixth years, 7 days for each month; during the seventh, eighth and ninth years, 9 days for each month; during the tenth, eleventh, twelfth, thirteenth and fourteenth years, 10 days for each month; during the fifteenth, sixteenth, seventeenth, eighteenth and nineteenth years, 12 days for each month; and from and including the twentieth year, up to and including the period fixed for the expiration of the sentence, 15 days for each month.'

In my opinion persons who receive a mandatory sentence for being in possession of a firearm when committing or attempting to commit a felony are not entitled to receive a reduction from such sentence because of the 'good time' law. Such convicts must serve the full, mandatory sentence imposed on them by 1931 PA 328, Sec. 227b, supra.

At the outset the following should be noted:

1. 'Society has the inherent right to protect itself and its members from vicious acts which imperil the proper administration of justice.

'Acts are declared criminal by the legislature, which may create and define crimes . . . and prescribe sentences on conviction. . . .' 8 M.L.P. Criminal Law Sec. 2

2. While most Michigan statutes declaring activities criminal provide a maximum term of imprisonment and/or fine that may be imposed rather than a mandatory sentence, at least 2 such statutes provide a mandatory punishment. Those convicted of first degree murder 'shall be punished by solitary confinement at hard labor in the state prison for life' (MCLA 750.316; MSA 28.548) while those who commit the crime of treason 'shall be punished by imprisonment in a state prison for life' (MCLA 750.544; MSA 28.812).

While a check of appellate court annotations does not disclose any prosecutions for treason in this state, there have, of course, been numerous prosecutions and convictions of persons charged with first degree murder. Such persons are not eligible for parole unless and until the Governor commutes such convict's sentence. Thus, in the case of those convicted of murder in the first degree, there is no allowance for 'good time' despite the apparent mandatory statement in said Act 118 that 'every convict' shall be entitled to a reduction if he has no rule infraction or violation of law recorded against him. Meyers v Jackson, 245 Mich 692; 224 NW 356 (1929).

The statute provides that such offenders 'shall be imprisoned' for not less than a given number of years. In Miller v Strabbing, 92 Mich 300; 52 NW 453 (1892), the Michigan Supreme Court defined the term 'imprisoned' to mean actual confinement in jail as opposed to being out on bond. Section 3 of the statute also provides:

'The term of imprisonment imposed under this section shall not be suspended. The person subject to the sentence mandated by this section shall not be eligible for parole or probation during the mandatory term imposed pursuant to subsection (3).' MCLA 750.227b(3); MSA 28.424(2)(3)

The intent of the legislature to impose stringent measures on persons convicted of possessing a firearm while committing or attempting to commit a felony is borne out by the legislative history of the statute. As originally introduced in the legislature as House Bill 5073, the bill provided that such offenders were to be ineligible for pardon, parole or probation during the time of the mandatory sentence. Only the restriction on the Governor's pardon power was deleted. 1975 House Journal, No 49, p 1239.

Significant also is another amendment of the bill to provide not only that the mandatory sentence be served consecutively, but also that the mandatory sentence precede any sentence for the conviction of the felony or attempted felony. 1975 House Journal, No 49, p 1239.

The foregoing deliberate action of the legislature amends by implication the provision of the 'good time' statute that every prisoner is entitled to reductions from sentences being served for good behavior.

Although Const 1963, art 4, Sec. 25, provides that no law shall be amended without re-enacting and publishing the section to be amended at length, the legislature's amendment by implication of the 'good time' statute is constitutionally permissible.

As stated by the Michigan Supreme Court in Advisory Opinion re Constitutionality of 1972 PA 294, 389 Mich 441, 477; 208 NW2d 469 (1973):

'Amendments by implication are an inevitable by-product of the legislative scheme of government. It boggles the mind to contemplate the laws which would be rendered unconstitutional ab initio and the avalanche of litigation which would follow were we to construe Sec. 25 in so extended a manner as to find unconstitutional its effect upon 1972 PA 294.

'This act does not purport by its terms to directly revise, alter or amend any act or section of an act other than the Insurance Code. It does amend the title of the Insurance Code and it sets forth in full the additions to the body of the Code. To the extent which this act cuts across and affects other acts, it does not present the kind of problem toward which this constitutional provision is directed.' [Emphasis supplied]

1976 PA 6 does not purport by its terms to directly revise, alter or amend any act or section of an act other than the Criminal Code and it sets forth the full addition to the body of the Code. Thus, to the extent which 1976 PA 6 cuts across and affects other acts, such as the good time act, it does not present the kind of problem toward which Const 1963, art 4, Sec. 25, is directed.

Moreover, the reasoning in Michigan appellate courts in analogous cases supports the conclusion that the mandatory sentence commanded by 1931 PA 328, Sec. 227(b), supra, is controlling, despite the provisions of the good time statute, supra.

In People v Patterson, 392 Mich 83; 219 NW2d 31 (1974), the court considered the issue whether a defendant already in prison under sentence for another crime is entitled to credit on a subsequent sentence for time spent in prison between arraignment and sentencing when the second sentence is consecutive. Credit for pretrial incarceration was provided for in MCLA 769.11b; MSA 28.1083(2), and MCLA 768.7a; MSA 1030(1) provided for discretionary consecutive sentencing. The court declined to grant the credit for pretrial incarceration of the defendant serving a prison sentence arising from a prior crime. The court also held that in providing for consecutive sentence the legislature intended that the subsequent sentence must be served after the termination of the prior sentence.

Applying the rationale of Patterson, supra, the court in People v Andrews, II, 52 Mich App 728; 218 NW2d 283 (1974), also declined to give credit for jail time to apply against a sentence for prison escape. The Court noted the conflict between MCLA 750.193; MSA 28.390, which relates to a prisoner who escapes and commits a crime punishable by imprisonment may be sentenced to imprisonment forthwith or the expiration of the term or terms of sentence which such person is serving, and MCLA 769.11b; MSA 28.1083(2), which allows credit against the sentence for time served while in jail awaiting sentence. The court held that the mandatory consecutive sentence statute is an exception to the statute granting credit generally.

Under these authorities it must follow that 1931 PA 328, Sec. 227(b), supra, is an exception to 1893 PA 118, Sec. 33, supra, the good time statute.

Turning now to the two specific questions you raised in your opinion request I note that in outlining the Department of Corrections' procedure for computing release dates, you state that an individual who receives a 2 year sentence for possessing a firearm when committing a felony or attempted felony and is granted probation for the felony or attempted felony, will serve the 2 years (less good time credits) and then be discharged from his sentence.

As the foregoing makes clear, it is my opinion that this procedure is not correct. Such individuals are not entitled to good time credits and must serve the full 2 year sentence before being discharged.

Where an individual receives a 2 year sentence for possessing a firearm, in addition to an indeterminate sentence for committing a felony or attempted felony, you state the Department's procedure would be to add the 2 years to both the minimum and maximum of the indeterminate sentence and compute the release dates 'in the same manner as we would ordinarily compute any other consecutive sentence.'

You state, in explanation: 'In other words, an individual who received two years for being in possession of a firearm in addition to five to ten for armed robbery would have his time computed as if he were serving a sentence of 7 to 12.'

The mothod for computation of parole eligibility and discharge dates are prescribed by MCLA 791.234; MSA 28.2304, which, in pertinent part, states:

'. . . [T]he parole board shall have jurisdiction over the prisoner for purposes of parole when he shall have served the total time of the added minimum terms, less the good time credit allowed by statute. The maximum terms of the sentences shall be added to compute the new maximum term under this provision and discharge shall be issued only after the sum total of such maximum sentences has been served less the good time credit the prisoner may earn or may be awarded by appropriate order; unless the procedure of parole shall intervene and discharge issue upon satisfactory completion of said parole, in which case the maximum term shall be discharged.'

From the foregoing, it is clear that you are correctly adding the mandatory 2 year term for possession of a firearm to the minimum and maximum dates of indeterminate sentences for committing a felony or attempted felony for determining parole eligibility and release dates. However, the sentences of prisoners serving consecutive terms cannot be added together for the purpose of good time computation.

MCLA 800.33; MSA 28.1403, supra, states in pertinent part:

'Whenever a convict has been committed under several convictions, with separate sentences being served concurrently, they shall be considered as 1 continuous sentence in the granting or forfeiting of good time: Provided, That when a convict begins serving a second or any subsequent term for which he has been convicted after the effective date of this amendatory act, he shall be allowed good time in accordance with the schedule, beginning with the lowest figure stated therein.'

Thus, it is my opinion that an individual who receives 2 years for being in possession of a firearm in addition to 5 to 10 years for armed robbery must serve the full mandatory 2 year sentence for possessing a firearm before beginning service of his second sentence. He cannot earn good time credits on the mandatory sentence. When commencing his second sentence, he cannot receive the benefit of the time served upon his first sentence to earn good time at an accelerated rate, but must begin earning good time credits in accordance with the statutory schedule, beginning with the lowest figure stated therein.

Frank J. Kelley

Attorney General