PEOPLE OF MI V BENJAMIN GERALD TRICE
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
September 23, 2004
Plaintiff-Appellee,
v
No. 247537
Wayne Circuit Court
LC No. 02-008928
BENJAMIN GERALD TRICE,
Defendant-Appellant.
Before: Borrello, P.J., and Murray and Fort Hood, JJ.
MEMORANDUM.
Defendant appeals as of right from a sentence of two years’ probation imposed on his
conviction of assault and battery, MCL 750.81. We affirm.
Defendant’s sole claim on appeal is that his sentence is invalid because assault and
battery is punishable by up to ninety-three days in jail and he had served more than two hundred
days in jail pending trial. We disagree.
Assault and battery is a misdemeanor punishable by up to ninety-three days in jail and/or
a fine of up to $500. MCL 750.81. If a defendant is convicted of “an offense that is not a
felony,” he may be placed on probation for up to two years. MCL 771.2(1). The court may “fix
and determine the period and conditions of probation.” MCL 771.2(2). “As a condition of
probation, the court may require the probationer” to serve a jail sentence. “However, the period
of confinement shall not exceed the maximum period of imprisonment provided for the offense
charged if the maximum period is less than 12 months.” MCL 771.3(2)(a). If a defendant is
sentenced to time in jail as a condition of probation and the time served in jail equals or exceeds
the maximum period of incarceration applicable to the offense, any additional probation time is
invalid. People v Bisogni, 132 Mich App 244, 246-247; 347 NW2d 739 (1984); People v Rose,
117 Mich App 530, 536-537; 324 NW2d 25 (1982).
If the court had sentenced defendant to time in jail as a condition of probation, he would
be entitled to credit against the jail sentence for time served. MCL 769.11b. Because that time
exceeded the maximum period of incarceration applicable to the offense, he would have served
the maximum sentence allowed and could not be required to serve probation as well. However,
the trial court did not impose any jail time as a condition of probation. It simply sentenced him
to two years’ probation with other conditions permitted by law but not including jail time.
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Although the probationary term exceeded the maximum possible jail sentence, the sentence was
nonetheless valid. MCL 771.2(1).
Affirmed.
/s/ Stephen L. Borrello
/s/ Christopher M. Murray
/s/ Karen M. Fort Hood
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