PEOPLE OF MI V JOSEPH DERRICK TYRPINAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
October 11, 2005
Oakland Circuit Court
LC No. 2001-180118-FH
JOSEPH DERRICK TYRPIN,
Before: Fitzgerald, P.J., and Cooper and Kelly, J.J.
Defendant appeals of right the trial court’s failure, on resentencing, to award him goodtime credit, MCL 51.282(1)-(2), earned on his original sentence that was later determined to be
illegal. People v Tyrpin, unpublished opinion per curiam of the Court of Appeals, issued April
15, 2003 (Docket No. 243603). We affirm and hold that good-time credit earned in conjunction
with an illegal sentence cannot be applied to his sentence on resentencing.
I. Pertinent Facts
Defendant was convicted by a jury of third-degree criminal sexual conduct, MCL
750.520d(1)(a) (sexual penetration with a person between the ages of thirteen and sixteen), and
fourth-degree criminal sexual conduct, MCL 750.520e(1)(a) (sexual contact with a person
between the ages of thirteen and sixteen). Defendant was originally sentenced to one year in jail
for his third-degree CSC conviction, and two years’ probation with the first year in jail for the
fourth-degree CSC conviction, to be served concurrently, with credit for seventy-one days
served. In defendant’s prior appeal of his original sentence, this Court concluded that the trial
court’s original one-year jail term violated the indeterminate sentencing act, MCL 769.8(1),
which requires the sentencing court to set both a minimum and maximum term of imprisonment.
Id. This Court also concluded that the trial court erred by departing downward from the
sentencing guidelines range of twenty-four to forty months. Id. The guidelines range required a
prison sentence, and did not permit imposition of an intermediate sanction. MCL 769.34(4).
On remand, the trial court resentenced defendant to a term of thirty months to fifteen
years’ imprisonment for the third-degree CSC conviction, to be served concurrently to a term of
sixteen months to two years’ imprisonment for the fourth-degree CSC conviction. At the time of
resentencing, defendant had actually been in jail for a total of 528 days, from June 12, 2002 to
March 22, 2003 (the date of his pretrial incarceration to the date of his release before this Court
vacated his sentence), and from May 8, 2003 to January 5, 2004 (the date his bond was revoked
to the day before his resentencing hearing).
The parties disputed the number of days of sentence credit defendant should receive for
time served. Despite originally being sentenced to one year in jail, defendant actually spent only
284 days in jail after being sentenced because he was awarded sixty-one days of good-time credit
pursuant to MCL 52.282(1)-(2).1 At the resentencing hearing, defendant argued that he should
receive credit for these sixty-one days, in addition to the 528 days he actually served in jail. The
prosecutor disagreed, arguing that the good-time credit was received in connection with an
illegal sentence. The trial court ordered credit for the 528 days actually served. Defendant now
appeals, asserting that he is entitled to an additional sixty-one days of sentence credit.
Defendant contends that the trial court, in resentencing defendant, violated his due
process rights when it refused to apply the sixty-one days of good-time credit that were earned as
a result of his original sentence. We disagree. The trial court correctly determined that
defendant should not benefit from sentence credit that would not have been granted but for an
error of law in defendant’s original sentencing.
Michigan law formerly awarded prisoners a “good-time allowance,” but this scheme was
subsequently replaced with a less generous scheme that allowed “disciplinary credits” for only
some categories of offenders. MCL 800.33(5); see People v Fleming, 428 Mich 408, 422 n 16;
410 NW2d 266 (1987). Under the current scheme, if defendant had been properly sentenced to a
prison term, he would not have been eligible for disciplinary credits. MCL 791.233b(w)
provides that a prisoner is not eligible for disciplinary credits if he is “a prisoner subject to
disciplinary time.” MCL 791.233c incorporates the definition of “prisoner subject to disciplinary
time” from MCL 800.34. MCL 800.34(5)(a)(iii) defines “prisoner subject to disciplinary time”
to include prisoners sentenced to an indeterminate term of imprisonment for several enumerated
crimes, including third-degree CSC, committed on or after December 15, 1998. Accordingly,
defendant would not have been eligible for disciplinary credit if he had been properly sentenced
to a prison term.
In support of his position that the trial court should have applied his sixty-one days of
good-time credit to his sentence on resentencing, defendant relies on MCL 769.11a and 769.11b.
MCL 769.11a provides:
Whenever any person has been heretofore or hereafter convicted of any
crime within this state and has served any time upon a void sentence, the trial
court, in imposing sentence upon conviction or acceptance of a plea of guilty
based upon facts arising out of the earlier void conviction, shall in imposing the
sentence specifically grant or allow the defendant credit against and by reduction
of the statutory maximum by the time already served by such defendant on the
We note that the sum of 284 days and 61 days is 345 days, which is twenty days less than one
year. The lower court record does not explain this discrepancy.
sentence imposed for the prior erroneous conviction. Failure of the corrections
commission to carry out the terms of said sentence shall be cause for the issuance
of a writ of habeas corpus to have the prisoner brought before the court for the
taking of such further action as the court may again determine. [Emphasis
MCL 769.11b provides:
Whenever any person is hereafter convicted of any crime within this state
and has served any time in jail prior to sentencing because of being denied or
unable to furnish bond for the offense of which he is convicted, the trial court in
imposing sentence shall specifically grant credit against the sentence for such
time served in jail prior to sentencing. [Emphasis added.]
However, contrary to defendant’s argument, the trial court did comply with these statutes by
giving defendant full credit for all days actually served.
Defendant also relies on People v Resler, 210 Mich App 24; 532 NW2d 907 (1995). The
defendant in Resler was convicted of embezzlement and properly sentenced to five years’
probation with the first year in jail. Id. at 25. He was awarded sixty days of good-time credit by
the sheriff. Id. After he was released, he violated his probation, and was sentenced to five to ten
years’ imprisonment. Id. The trial court allowed him credit only for the time he actually served
in jail. Id. This Court held that Double Jeopardy Clauses of the United States and Michigan
Constitutions, US Const, Am V; Const 1963, art 1, § 15, prohibited the revocation of the goodtime credit:
While the Double Jeopardy Clause does not prohibit revocation of goodtime credit per se, it does restrict a court’s authority to impose punishment in
excess of the intent of the Legislature. The basic inquiry is whether the total
punishment imposed exceeds that authorized by the Legislature. . . . In this case,
the Legislature has not provided for the revocation of good-time credit in the
context of conditional probation, as it has done in the parole context. There is no
statutory provision evidencing a legislative intent to allow such revocation. The
trial court therefore exceeded its authority under the Double Jeopardy Clause to
take away what was already given to defendant. Defendant is entitled to keep
what he has earned. [Id. at 26-27.]
However, the Legislature did not authorize the award of good-time credits to a person in
defendant’s situation. On the contrary, the Legislature precluded such credit to persons, like
defendant, convicted of third-degree CSC. We conclude that the trial court correctly determined
that defendant cannot benefit from sentence credit that would not exist but for an error of law in
defendant’s original sentencing. Accordingly, defendant is not entitled to application of that
credit to his sentence on resentencing.
/s/ E. Thomas Fitzgerald
/s/ Kirsten Frank Kelly
I concur in result only.
/s/ Jessica R. Cooper