PEOPLE OF MI V JESUS MANUEL QUEZADA
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
February 23, 1999
Plaintiff-Appellant,
v
No. 192370
Oakland Circuit Court
LC No. 95-140108 FH
JESUS MANUEL QUEZADA, a/k/a JESUS
ANTILLON,
Defendant-Appellee.
Before: Markman, P.J., and Bandstra and J. F. Kowalski*, JJ.
MEMORANDUM.
Defendant pleaded nolo contendere to delivery of more than 5 kilograms, but less than 45
kilograms of marijuana, MCL 333.7401(1) and (2)(d)(ii); MSA 14.15(7401)(1) and (2)(d)(ii), and to
conspiracy, MCL 750.157a; MSA 28.354(1). The trial court sentenced defendant to one year in the
county jail consistent with a preliminary sentencing evaluation placed on the record at the time of the
plea-taking pursuant to People v Cobbs, 443 Mich 276; 505 NW2d 208 (1993). The prosecutor
appeals by leave. We vacate defendant’s sentence and remand. This case is being decided without
oral argument pursuant to MCR 7.214(E).
The prosecutor argues that defendant’s one-year jail sentence is invalid under the indeterminate
sentencing act, MCL 769.8; MSA 28.1080. We agree.
A “felony” offense is an offense for which the convicted offender may be punished by death or
by imprisonment in the state prison. MCL 750.7; MSA 28.197; People v Austin, 191 Mich App 468,
469; 478 NW2d 708 (1991). Under the plain language employed in MCL 333.7401(2)(d)(ii); MSA
14.15(7401)(2)(d)(ii), delivery of more than 5 kilograms, but less than 45 kilograms of marijuana is a
felony offense because it is punishable by imprisonment in a state prison “for not more than 7 years . .
.” Austin, supra. The indeterminate sentencing act provides in pertinent part:
* Circuit judge, sitting on the Court of Appeals by assignment.
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When a person is convicted for the first time for the commission of a felony, and the
punishment prescribed by law for that offense may be imprisonment in a state prison,
the court imposing sentence shall not fix a definite term of imprisonment, but shall fix a
minimum term, except as otherwise provided in this chapter. The maximum penalty
provided by law shall be the maximum sentence in all cases except as provided in this
chapter and shall be stated by the judge in imposing the sentence. [MCL 769.8; MSA
28.1080.]
Because the instant convictions are defendant’s first felony convictions and because defendant’s
convictions subjected him to potential imprisonment in the state prison, under the clear language of the
indeterminate sentencing act the trial court was required to impose both a minimum and a maximum
sentence that would require defendant to serve his sentences in a state prison. Compare Austin, supra;
see People v Kelly, 186 Mich App 524, 529; 465 NW2d 569 (1990) (“the word ‘shall’ generally
denotes a mandatory duty”). Accordingly, the one-year jail sentence was invalid.
Defendant misplaces his reliance on People v Lyles, 76 Mich App 688; 257 NW2d 220
(1977), to support his claim that the sentence imposed was valid. Although Lyles stands for the
proposition that “the indeterminate sentence act is inapplicable to any sentence imposed pursuant to
MCLA 769.28; MSA 28.1097(1),” Lyles, supra at 690, Lyles does not speak to whether the one
year sentence was statutorily authorized. The offense for which the defendant in Lyles was sentenced
specifically allowed for the imposition of a one-year jail term. MCL 750.92; MSA 28.287. MCL
333.7401(2)(d)(ii) contains no similar allowance.
Because defendant’s sentence was invalid, we vacate defendant’s sentence and remand to
allow defendant to either withdraw his pleas or affirm his pleas in light of his knowledge of the
sentencing consequences. Cobbs, supra at 283. This disposition makes it unnecessary for us to
address the prosecutor’s remaining argument.
Sentence vacated and remanded for proceedings consistent with this opinion. We do not retain
jurisdiction.
/s/ Stephen J. Markman
/s/ Richard A. Bandstra
/s/ John F. Kowalski
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