PEOPLE OF MI V FRANC GRAZHIDANIAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
January 22, 2008
Wayne Circuit Court
LC No. 02-013460-01
Advance Sheets Version
Before: Servitto, P.J., and Sawyer and Murray, JJ.
In this appeal, we are asked to determine whether a defendant sentenced to prison for a
probation violation is entitled to credit for time not served because of an early release from jail
due to overcrowding. We hold that a defendant is not entitled to credit for time not served.
Defendant pleaded guilty of third-degree criminal sexual conduct1 and was initially
sentenced to five years' probation, with the first year being served in the county jail. After his
release from the county jail, defendant violated various conditions of his probation. The trial
court revoked defendant's probation and sentenced defendant to serve 2 to 15 years in prison.
The trial court was informed that defendant had only served 268 days of the one-year county-jail
term, having been released early because of jail overcrowding. Although the trial court initially
only granted defendant credit for the 268 days actually served, the trial court thereafter reversed
itself and granted credit for the entire one-year jail sentence originally imposed by the trial court.
The prosecutor now appeals by leave granted and we reverse.
The defendant's jail term was reduced under the county jail overcrowding state of
emergency act,2 which provides various methods of reducing an excessive jail population. At
issue here are the provisions of MCL 801.57:
If the actions taken pursuant to [MCL 801.55 and 801.56] do not reduce
the county jail's population to the level prescribed in [MCL 801.56(1)] within 28
MCL 801.51 et seq.
days of the declaration of the county jail overcrowding state of emergency, the
original sentences, not including good time, of all prisoners sentenced to and
housed in the county jail on that date shall be equally reduced by the sheriff by the
least possible percentage reduction necessary, not to exceed 30%, to reduce the
county jail's prisoner population to the level prescribed in [MCL 801.56(1)].
This case presents a question of first impression. We must begin by looking at the
concept of credit for time served as a condition of probation against a subsequent prison sentence
following a violation of that probation. The Legislature has provided that if probation is revoked
"the court may sentence the probationer in the same manner and to the same penalty as the court
might have done if the probation order had never been made. . . ."3 This statute does not
specifically provide for credit for time served as a condition of probation against any subsequent
prison sentence imposed after probation is revoked. In fact, the only statutory provision of
which we are aware that provides for sentence credit is MCL 769.11b, which states:
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.
By its clear terms, this statute provides no relief to defendant. First, the incarceration as a
condition of probation occurred after sentencing, not before.4 Second, that incarceration did not
occur as a result of defendant being denied or unable to furnish bond. And, finally, the time
represented by the reduction in defendant's sentence because of jail overcrowding obviously was
not time served "in jail" as required by the statute.5
Accordingly, for defendant to be entitled to credit for the time not served, it must be due
to constitutional compulsion, not statutory grant. Defendant argues that the Double Jeopardy
Clause compels a grant of credit, relying primarily on this Court's decision in People v Resler.6
In Resler, the defendant was originally sentenced to probation, with the first year to be served in
the county jail. The defendant was released 60 days early because of good time granted by the
sheriff. Thereafter, the defendant's probation was revoked and he was sentenced to prison. The
trial court only granted credit for the time actually served in jail. The defendant appealed,
Though one could, perhaps, make the argument that the time served as a condition of probation
was time served before the sentencing on the probation violation, defendant does not so argue
See People v Whiteside, 437 Mich 188; 468 NW2d 504 (1991).
210 Mich App 24; 532 NW2d 907 (1995).
arguing that he was also entitled to credit for 60 days of good time. This Court agreed with the
Defendant argues that Resler should be extended to include credit for the amount of time
a sentence is reduced under the jail-overcrowding act. We disagree. First, a close examination
of Resler indicates that it is of dubious correctness. In part, the decision in Resler rested on dicta
in the Supreme Court's decision in North Carolina v Pearce,8 wherein the Court observed that,
not only must a defendant receive credit for time served, but the "credit must, of course, include
the time credited during service of the first prison sentence for good behavior, etc." But Pearce
was materially different from the case at bar. In Pearce, the defendant was convicted, served a
portion of his sentence, had the original conviction overturned, and then was re-convicted and
sentenced a second time. Although the second sentence was shorter than the first, it granted no
credit for time served on the original conviction, and the effect was to extend the defendant's
incarceration by nearly three years.9 Similarly, in the companion case, the defendant was
sentenced to prison, won a reversal, was reconvicted and received a longer sentence upon
reconviction, with no credit for time served on the original sentence.10 Pearce determined that a
defendant under those circumstances is entitled to credit for the time served on the first sentence
against the second sentence for the same crime, stating that "punishment already exacted must be
fully 'credited' " in imposing the new sentence.11
But none of this involves the question regarding credit for time served or, as is the
situation in the instant case, credit for time not served as a condition of probation. In concluding
that credit must be granted for time served in jail as a condition of probation against a subsequent
prison term imposed for violating that probation, the Resler Court glossed over the Supreme
Court's decision in Whiteside. And it paid even less attention to the Court's decision in People v
Sturdivant.12 But a resolution of the question whether a defendant is entitled to credit for time
served as part of a condition of probation cannot properly be resolved without careful
consideration of those two decisions.
First, in Sturdivant, the Court, relying on Pearce, clearly held that a defendant sentenced
to prison on a probation violation is entitled to credit for time served as a condition of the
probation.13 But Sturdivant only considered credit for time actually spent incarcerated. Ten
years later, in Whiteside, the Supreme Court considered credit for time spent not in jail, but in a
residential drug-treatment program. First, the Court rejected an argument that the defendant had
Id. at 25.
North Carolina v Pearce, 395 US 711, 719 n 13; 89 S Ct 2072; 23 L Ed 2d 656 (1969).
Id. at 713.
Id. at 714.
Id. at 718-719.
People v Sturdivant, 412 Mich 92; 312 NW2d 622 (1981).
Sturdivant, supra at 97.
a statutory right to sentencing credit because the sentencing credit granted by statute is for time
served before sentencing where the defendant was denied bond or unable to post bond. Because
the defendant did not reside in the drug-treatment program in lieu of posting bond, he was not
entitled by statute to sentencing credit.14
Turning to the constitutional issue, the Whiteside Court examined both the Pearce and the
Sturdivant decisions and appeared to question whether Sturdivant was correctly decided. First,
in a footnote, Whiteside15 notes that Sturdivant overlooked a more recent United States Supreme
We note that the Sturdivant Court's opinion did not consider the reasoning
in United States v DiFrancesco, 449 US 117, 137; 101 S Ct 426; 66 L Ed 2d 328
(1980), wherein the United States Supreme Court stated, "North Carolina v
Pearce . . . demonstrate[s] that the Double Jeopardy Clause does not require that a
sentence be given a degree of finality that prevents its later increase." The Court
also stated that "there is no double jeopardy protection against revocation of
probation and the imposition of imprisonment." Id.
The Court then observed that in "the case before us, there is no challenge to the proposition that
Sturdivant entitles this defendant to credit for any time served in jail while on probation."16 This
phrase, coupled with the above-quoted footnote, suggests that the Whiteside Court was not
entirely convinced of thesoundness of its decision in Sturdivant ten years before. Indeed, later in
the opinion the Court considered Jones v Thomas,17 which noted that, in the context of multiple
punishments, the Double Jeopardy Clause only serves to ensure that the total punishment
imposed does not exceed that which the Legislature authorized.18 After noting that legislative
intent determines whether multiple punishments constitute double jeopardy,19 the Court stated
In order, then, to apply in this case the constitutional principle recognized
in Pearce and its progeny, we are required again to return to the inquiry: What
did the Legislature intend? More specifically, the question in this context is:
Does the total punishment imposed exceed that authorized by the Legislature?
While Whiteside stopped short of overruling Sturdivant, it did limit its applicability. After
concluding that the Legislature did not intend to grant credit for time spent in a residential
Whiteside, supra at 196-197.
Id. at 199 n 17.
Whiteside, supra at 199.
Jones v Thomas, 491 US 376; 109 S Ct 2522; 105 L Ed 2d 322 (1989).
Whiteside, supra at 200.
Id. at 201.
treatment facility because it did represent time spent "in jail,"20 the Court then limited Sturdivant
to granting credit for time spent incarcerated:
To the extent that Sturdivant may appear to depart from this reasoning, it
should be kept in mind that the time credited there was time served in the county
jail. Our decision today limits the holding in Sturdivant to time served while
We read Whiteside as fairly clearly limiting credit for time served as a condition of
probation to the time actually spent while incarcerated "in jail"—that is, the actual number of
days spent in the county jail, without regard to any reduction in the sentence for any reason.22
But while we question whether Resler was correctly decided, the prosecutor does not ask us to
revisit that issue. Therefore, we decline to create a conflict with Resler or to consider whether
defendant in the case before us was entitled to credit on his prison sentence for good-time
granted by the sheriff during his incarceration as a condition of probation.
But we also decline to extend Resler beyond its facts and apply it to sentence reductions
under the jail overcrowding act. Obviously the days that defendant did not serve on his sentence
because of his early release from the county jail under the jail overcrowding act are not time
spent "in jail." Because we read Whiteside as concluding that the Legislature only intended to
grant credit for time actually spent "in jail," we conclude that defendant is not entitled to credit
for time that he otherwise would have spent in jail except for his early release under the jailovercrowding act.
We do observe that, even if Resler was correctly decided, good-time credit and a sentence
reduction under the jail-overcrowding act are sufficiently different that Resler does not compel a
conclusion that a sentence reduction under the jail-overcrowding act merits sentence credit
against a subsequent prison term. A primary distinction between good-time and overcrowding
sentence reduction is that good time is something that a defendant earns. As the Resler Court
noted, the Double Jeopardy Clause precludes a court from taking away "what was already given
to defendant. Defendant is entitled to keep what he has earned."23 Under MCL 51.282(2), a
defendant is entitled to a one-day reduction for every six days served if he or she has no
violations of the rules and regulations. Thus, a defendant has the right to such good time
conditioned only on his or her good behavior.
Id. at 202.
Id. at 202 n 20.
Resler attempts to distinguish the issue by pointing out that in neither Sturdivant nor Whiteside
"does the term 'actually' modify 'time served.' Nor do the opinions make any such suggestion."
Resler, supra at 28. We would think the statement in Whiteside, supra at 202 n 20, that limits
Sturdivant to "time served while incarcerated" certainly makes such a suggestion.
Resler, supra at 27.
By contrast, a reduction in sentence due to jail overcrowding is essentially irrelevant to
the defendant's behavior and, more to the point, nothing a defendant does can "earn" time under
the overcrowding-reduction act, nor is any particular prisoner entitled to a reduction in his or her
sentence under the act. That is, a reduction under the good-time statute applies regardless of the
vacancy rate in the jail—the jail could be half full and the prisoner who obeys the rules and
regulations will earn a good-time reduction. On the other hand, a prisoner receives a jailovercrowding reduction only under certain conditions related to the jail exceeding its capacity,
an event unrelated to a particular prisoner's behavior. The amount of such reduction, or even if
such a reduction will be given, is determined by the needs of the sheriff to reduce the jail
population and not by the prisoner's behavior. That prisoner has earned nothing, but rather has
received a gift from the state because of the county's failure to provide adequate resources to its
sheriff to house the county's prisoners. Thus, while one might conclude, as did the Court in
Resler,24 that the Legislature intended that "good-time credit effectively takes the place of jail
time," there is no basis for such a conclusion with respect to a reduction in sentence under the
For these reasons, we conclude that where a defendant is sentenced to probation, and the
terms of probation include incarceration in the county jail, and the defendant thereafter violates
probation and is sentenced to prison, he or she is not entitled to credit on his or her new sentence
for any time by which his or her original incarceration in the county jail was reduced under MCL
801.57. Accordingly, we remand this matter to the trial court for entry of a new judgment of
sentence that does not include credit for time served based on the amount by which defendant's
sentence was reduced under MCL 801.57.
Reversed and remanded for further action consistent with this opinion. We do not retain
/s/ David H. Sawyer
/s/ Deborah A. Servitto
/s/ Christopher M. Murray