author: Bashara, P.J.

text:
    PEOPLE v TURNER
    Docket No. 78-2444.
    Submitted June 20, 1979, at Detroit.
    Decided September 19, 1979.
    Halbert G. Turner was convicted, on his plea of guilty, of carrying a concealed weapon, Monroe Circuit Court, James J. Kelley, Jr., J. Sentencing was adjourned for six months to provide additional time to determine a proper sentence. Subsequently, sentencing was deferred two more times and the defendant was ultimately sentenced to prison two years and three months after the conviction. Defendant appeals, alleging that under a statute the trial court had one year to pronounce sentence and that by delaying sentencing for more than a year beyond the one-year statutory period the court lost its jurisdiction over the defendant. Held:

    There is nothing in the record to indicate that the court was unable to pass sentence for any unavoidable reason after the initial six-month deferment. The sentence was invalid.
    Defendant’s conviction is affirmed, but the sentence is vacated.
    Criminal Law — Sentencing — Delay in Sentencing — Waiver — Statutes.
    A trial court which delayed sentencing of a defendant for over two years, where nothing in the record indicates that the court was unable to pass sentence for any unavoidable reason after an initial six-month deferment, thereby lost jurisdiction to sentence the defendant; consent by the defendant to repeated adjournments does not constitute a waiver of the statutory requirement that a defendant be sentenced within one year of his conviction (MCL 771.1; MSA 28.1131).
    Reference for Points in Headnote
    21 Am Jur 2d, Criminal Law § 555.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Michael W. LaBeau, Prosecuting Attorney, and John T. Marunick, Assistant Prosecuting Attorney, for the people.

      Ronald J. Bretz, Assistant State Appellate Defender, for defendant on appeal.
    Before: Bashara, P.J., and D. E. Holbrook, Jr. and J. C. Daner, JJ.

       Circuit judge, sitting on the Court of Appeals by assignment.

   Bashara, P.J.

Defendant appeals from a maximum jail sentence imposed more than two years after his plea-based conviction of carrying a concealed weapon, contrary to MCL 750.227; MSA 28.424.

On November 3, 1975, defendant pled guilty to possession of brass knuckles. On December 12, 1975, sentencing was adjourned to May 6, 1976, in order to provide more time within which a proper sentence could be determined.

Sentencing was then adjourned to October 28, 1976, at which time defendant’s counsel suggested that the court defer sentencing until a later date since defendant had been in no further difficulty with the law.

The following colloquy took place between the court, defense counsel and defendant:

"MR. MCCORMICK: Do you have any objection to continuing this and see—in order to determine a suitable and proper sentence, Mr. Turner?
"MR. TURNER: Okay. No objection.
"THE COURT: Let’s assume, Mr. Turner, that you have the right to have sentence imposed within one year from the date of your conviction. Do you understand that right?
"MR. TURNER: Yes, sir.
"THE COURT: Are you giving up that right?
"MR. TURNER: Yes sir.”

Sentencing was then set for November 1, 1977, on which date it was again deferred.

On February 15, 1978, a bench warrant was issued and on February 23, defendant was sentenced to 40-60 months for the original offense.

The court, in deferring sentence, was apparently relying on MCL 771.1; MSA 28.1131, which provides in pertinent part:

"In any case in which the court may place the defendant on probation, it may delay the imposing of sentence of the defendant for a period of not to exceed 1 year for the purpose of giving the defendant an opportunity to prove to the court his eligibility for probation or such other leniency as may be compatible with the ends of justice and the rehabilitation of the defendant. When the sentencing is delayed, the court shall make an order setting forth the reason for the delay, which order shall be entered upon the records of the court. The delay in passing sentence shall not deprive the court of jurisdiction to sentence the defendant at any time during the extended period.”

Defendant claims that delaying sentencing one year and three months beyond the one-year statutory period resulted in loss of jurisdiction.

The question of delayed sentencing is not a new one in Michigan jurisprudence. In People v Reilly, 53 Mich 260; 18 NW 849 (1884), the Michigan Supreme Court upheld a sentence imposed eight months after conviction. However, Justices Champlin and Campbell expressed doubt that a court could always suspend sentence for good cause for a reasonable length of time after conviction.

In People v Kennedy, 58 Mich 372; 25 NW 318 (1885), the Court indicated that a sentence could be deferred for a reasonable period and for a proper purpose, however, jurisdiction is lost after the time of maximum possible sentence passes. (Sentencing had taken place six months after conviction in this instance.)

In People v Jagosz, 253 Mich 290; 235 NW 160 (1931), sentence was imposed 63 days after conviction. Although cause for the delay was not shown, the Court held there was no error in the delay.

These earlier viewpoints can be considered codified in the sentencing statute previously cited. Only one case has addressed the issue of delay since the statute was enacted. In People v McLott, 70 Mich App 524; 245 NW2d 814 (1976), a panel of this Court found jurisdiction was not lost when sentence was imposed 13 days beyond the one-year period.

In interpreting the statute, the Court held that jurisdiction would not be lost in every instance where the statutory time period was exceeded. An analogy was drawn to the 180-day rule and the requirement of a good faith effort. It was emphasized, however, that the time limitation could be exceeded only in the most limited circumstances.

In the case at bar, the facts differ greatly from the above cases. Sentencing was adjourned five times over a lengthy period. Nothing in the record indicates that the trial judge was unable to sentence defendant for any unavoidable reason after the initial deferment.

The prosecution places great emphasis on the fact that defense counsel requested the delay and defendant acquiesced at each adjournment. The prosecutor claims consent constitutes a waiver of the one-year requirement, citing In re Tinholt, 223 Mich 483; 194 NW 131 (1923). In that case, defendant agreed to have sentencing postponed indefinitely. Four months later he was sentenced (five months after conviction). The Court held that by consenting defendant waived the right to complain, but indicated that a delay could not be unreasonable.

Waiver of the right to be sentenced by consenting to a delay is meaningless. Such a consent is inherently unsound since a defendant, as a practical matter, will always opt for freedom. Furthermore, the question of retention or loss of jurisdiction should not depend solely on the consent or waiver of the defendant. See People ex rel Harty v Fay, 10 NY2d 374; 179 NE2d 483 (1961).

Court administration and public interest demand avoidance of protracted delay. Finality should be encouraged in criminal prosecutions.

The defendant also has an interest in having judgment pronounced. Until sentenced, defendant cannot be eligible for pardon or commutation of sentence or bring an appeal.

If sentencing can be delayed for one year and three months beyond the statutory limits, it can be delayed forever. See People v Reilly, supra, at 263. The trial court cannot simply postpone sentencing and retain jurisdiction, except in the most limited and unusual of circumstances. Those circumstances were not present in this case.

The effect of this opinion is not, however, to reverse defendant’s conviction. A careful reading of the hereinbefore enumerated statute and People v McLott, supra, convince us that the unauthorized delay deprives the court only of jurisdiction to sentence. The defendant remains convicted of the crime and subject to any collateral consequences thereafter.

Defendant’s conviction is affirmed. His sentence is hereby vacated.

       The language limiting the period of time of delay between conviction and sentence was added September 8, 1961, after the Jagosz case was decided.

       The people also cite People v Cordell, 309 Mich 585; 16 NW2d 78 (1944). That case is inapplicable since sentence had already been imposed but was suspended on defendant’s request so he could enter the armed services. The court was held to retain jurisdiction to reinstate the sentence upon defendant’s return.

       Numerous jurisdictions have concluded that an indefinite or protracted failure to pronounce sentence results in a loss of jurisdiction. See People v Fay, supra, at 377.


source: Caselaw Access Project

author: V. J. Brennan, J.

license: Public Domain

text:
    SHAHEEN v SCHOENBERGER
    Docket No. 78-2979.
    Submitted June 7, 1979, at Lansing.
    Decided September 20, 1979.
    Michael L. Shaheen was riding as a passenger in Michael Ma-hon’s automobile in Florida. Both parties were killed when the automobile crossed the center lane and collided head-on with a semitrailer truck. Lewis W. Shaheen, Michael Shaheen’s father, individually and as administrator of Michael’s estate and Louise Shaheen individually, brought an action in Ingham Circuit Court for wrongful death damages against Maurice E. Schoenberger, administrator of Michael Mahon’s estate. All parties to the action are Michigan residents. Defendant moved for partial summary judgment. Ray C. Hotchkiss, J., ruled that lex loci delicti controls and the amount of damages was to be determined by the Florida wrongful death statute which limited the parents’ recovery to funeral expenses in contrast to the lex fori allowances for mental pain and suffering of the deceased, his pecuniary damages, and loss of support by the parents. Plaintiffs appeal. The question presented is whether the lex fori or the lex loci delicti controls the elements of damages recoverable in this wrongful death action. Held:

    Michigan’s public policy and concern for the well-being of survivors is against the limitation of damages in wrongful death actions. Public policy prevails and Michigan law (lex fori) not Florida law (lex loci delicti) applies where a Florida automobile accident occurred and a wrongful death action is brought in Michigan and where all of the parties to the action are Michigan residents.
    Reversed and remanded.
    References for Points in Headnotes

       1 Am Jur 2d, Actions § 6.
    16 Am Jur 2d, Conflict of Laws § 11.
    Conflict of laws as to measure or amount of damages in death actions. 92 ALR2d 1180.
    Modern status of rule that substantive rights of parties to a tort action are governed by the law of the place of the wrong. 29 ALR3d 603.

      1. Courts — Conflict of Laws — Lex Loci Delicti — Applicable Laws.
    The doctrine of lex loci delicti has been traditionally followed by Michigan courts in conflict of law cases; however, recent developments in the law provide exceptions to the rule which warrant an individualized approach to the law to be applied based on the particular circumstances of each case.
    2. Torts — Wrongful Death — Damages — Public Policy — Lex Loci Delicti.
    A statute embodies the state’s enunciated public policy against the limitation of damages in wrongful death actions where the litigants are Michigan residents; this policy coupled with state interest in a survivor’s well-being operates, where a fatal automobile accident occurs in Florida and all parties to the action are Michigan residents, to except the elements of damages from the lex loci delicti rule.

      Abood & Abood, P.C., for plaintiffs.

      Willingham, Coté, Hanslovsky, Griffith & Fores-man, P.C. (by John A. Yeager), for defendant.
    Before: Danhof, C.J., and V. J. Brennan and H. R. Carroll, JJ.

       Former circuit judge, sitting on the Court of Appeals by assignment pursuant to Const Í963, art 6, § 23 as amended in 1968.

   V. J. Brennan, J.

On April 8, 1977, Michael L. Shaheen was riding as a passenger in Michael Mahon’s automobile in Florida. At approximately 4:40 a.m., the automobile crossed the center lane of US-1 and collided head-on with a semitrailer truck. Both Mahon and Shaheen were killed.

On July 5, 1978, the parents of Michael L. Shaheen filed a wrongful death action in the Ingham County Circuit Court. As part of their damages they alleged: (1) mental pain and suffering of the deceased passenger; (2) pecuniary damages to the passenger; and (3) loss of support, services and companionship by the parents.

In response, defendant filed a motion for partial summary judgment to limit the elements of damages on the grounds that under the Florida wrongful death statute the deceased’s cause of action abated; the parents could recover for pain and suffering only if the deceased were under 18; no action for loss of companionship existed; and the only action open to the parents was for funeral expenses. All parties to this action are Michigan residents.

In reliance upon Abendschein v Farrell, 382 Mich 510; 170 NW2d 137 (1969), the trial judge ruled that lex loci delicti controls, and the amount of damages is to be determined by the Florida statute. Plaintiffs appeal by leave granted.

The case presents one pertinent inquiry: whether the lex fori or the lex loci delicti controls the elements of damages recoverable in a wrongful death action.

Michigan has traditionally followed the lex loci delicti rule in conflict of laws cases. Abendschein v Farrell, supra, at 516, fn 3. However, developments in the law since Abendschein warrant an individualized approach to the question based on the particular circumstances of the case. Branyan v Alpena Flying Service, Inc, 65 Mich App 1, 7; 236 NW2d 739 (1975).

In Branyan, the Court was faced with a question similar to the case at bar, involving whether limitation of damages was to be determined by the wrongful death statute of the lex fori (Michigan) or the lex loci delicti (Virginia). The Court addressed the particular issue and policy considerations involved pointing out that limitations of damages primarily concerns compensation of survivors. Since the survivors in Branyan were Michigan residents, Michigan has the greatest interest in their well-being. Further, Michigan has an enunciated public policy against limitation of damages in wrongful death actions. The Branyan Court then held that Michigan law applied.

The defendant points out that Branyan relied on an airplane crash exception to the lex loci delicti rule set forth in Abendschein and argues that Branyan is inapplicable to automobile crash cases. However, in Sweeney v Sweeney, 402 Mich 234; 262 NW2d 625 (1978), the Supreme Court took a second look at the "hard and fast” rule of Abendschein. After careful analysis the Court held that application of the lex loci delicti (Ohio) which bars suit between a parent and child (based on an automobile accident) would frustrate announced Michigan public policy where the litigants were Michigan residents. Clearly the approach set forth in Branyan was impliedly approved in Sweeney in determining any individual exceptions to the lex loci delicti rule. Thus both Branyan and Sweeney are applicable to the question presented herein. See Storie v Southfield Leasing, Inc, 90 Mich App 612; 282 NW2d 417 (1979).

As set forth above the case at bar involves the elements of damages available to survivors in a wrongful death action. Since the survivors are Michigan residents, Michigan has the greatest interest in their well-being. MCL 600.2922; MSA 27A.2922, sets forth the elements of damages recoverable for wrongful death. The statute embodies the state’s public policy in this regard. This policy, coupled with Michigan’s interest in the survivors’ well-being, operates under the facts in this case to except the elements of damages from the lex loci delicti rule.

The lower court’s ruling to the contrary is reversed and the cause is remanded. We retain no further jurisdiction. Costs to be paid to plaintiffs.