PEOPLE OF MI V BRUCE STANLEY FULLER
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S T A T E O F M I C H I G A N
C O U R T O F A P P E A L S
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
December 3, 1996
Plaintiff-Appellee,
v
No. 176255
LC No. 92-001643-FH
BRUCE STANLEY FULLER,
Defendant-Appellant.
Before: J.H. Gillis, P.J., and G.S. Allen and J.B. Sullivan, JJ.*
MEMORANDUM.
Defendant pleaded guilty to assaulting a jail employee, MCL 750.197c; MSA 28.394(3), and
was sentenced to two to four years’ imprisonment . He appeals as of right. We affirm. This case has
been decided without oral argument pursuant to MCR 7.214(A).
Defendant argues that there was no factual basis for his plea. We disagree. Assaulting a jail
employee occurs when a “person lawfully imprisoned in a jail . . . , through the use of violence, threats
of violence or dangerous weapons, assaults an employee of the place of confinement . . . knowing the
person to be an employee . . . .” MCL 750.197c; MSA 28.394(3). Defendant testified at the plea
hearing that he intentionally threw apple juice outside his cell at an officer during his confinement in the
county jail pending the disposition of other charges. These facts sufficiently establish that defendant
assaulted the jail employee through the use of violence. People v Booth, 414 Mich 343, 360; 324
NW2d 741 (1982); People v Brownfield (After Remand), 216 Mich App 429, 431; 548 NW2d 248
(1996); People v Boyd, 102 Mich App 112, 116-117; 300 NW2d 760 (1980).
The trial court’s sua sponte correction of defendant’s sentence was proper. The sentence was
initially made concurrent to the sentences defendant received in another case for breaking and entering
*Former Court of Appeals judges, sitting on the Court of Appeals by assignment pursuant to
Administrative Order 1996-10.
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and receiving or concealing stolen property. Although a trial court is without jurisdiction to upset a valid
sentence, MCR 6.429(A); In re Dana Jenkins, 438 Mich 364, 368; 475 NW2d 279 (1991); People
v Kelly, 213 Mich App 8, 12; 539 NW2d 538 (1995), the assault sentence should have been made
consecutive to the sentences imposed for breaking and entering and receiving or concealing stolen
property under MCL 768.7b(1); MSA 28.1030(2)(1) because defendant committed the assault while
he was confined in the county jail pending the disposition of those charges.
Defendant also argues that he is entitled to additional sentence credit against his assault sentence
for the time he spent in confinement prior to the amendment of the sentence. We disagree. When a
void sentence is set aside and a new sentence is imposed, any time served on the void sentence must be
credited against the sentence then imposed. MCL 769.11a; MSA 28.1083(1); People v Dorsey, 107
Mich App 789, 792; 310 NW2d 244 (1981). However, defendant had not begun serving the sentence
for assaulting a jail employee prior to the amendment of the sentence; his concurrent sentences for
breaking and entering and receiving or concealing stolen property had not yet expired.
Finally, we reject defendant’s argument that MCL 768.7b(1); MSA 28.1030(2)(1) violates
substantive due process and equal protection. See People v Sleet, 193 Mich App 604; 484 NW2d
757 (1992).
Affirmed.
/s/ John H. Gillis
/s/ Glenn S. Allen, Jr.
/s/ Joseph B. Sullivan
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