PEOPLE OF MICHIGAN V CARL BURTON
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
October 28, 1997
Plaintiff-Appellee,
v
No. 206720
Saginaw Circuit Court
LC No. 92-006023-FH
CARL BURTON,
Defendant-Appellant.
ON REMAND
Before: Fitzgerald, P.J., and Griffin and Jansen.
PER CURIAM.
This case is on remand from the Michigan Supreme Court for reconsideration in light of People
v Miles, 454 Mich 90; 559NW2d 90 (1997). We affirm.
In our original opinion,1 on the prosecutor’s cross-appeal we vacated that portion of the trial
court’s judgment of sentence that imposed concurrent sentences for defendant’s convictions of
manufacture of more than fifty but less than 250 grams of a controlled substance, and conspiracy to
manufacture a controlled substance in the same amount, MCL 333.7401(2)(a)(iii); MSA
14.15(7401)(2)(a)(iii). We ordered the trial court to revise defendant’s judgment of sentence to reflect
that defendant’s ten to twenty year sentences are to be served consecutively pursuant to MCL
333.7401(3); MSA 14.15(7401)(3). People v Sammons, 191 Mich App 351, 375; 478 NW2d 901
(1991).
In Miles, supra, the defendant pleaded guilty of armed robbery and possession of a firearm
during the commission of a felony. At the time of the plea, he was advised that he would serve a two
year term for the felony-firearm conviction. Thereafter, following receipt of a letter from a Department
of Corrections employee indicating that the defendant had a previous felony-firearm conviction and after
further investigation, the trial court entered an amended judgment providing a five-year sentence for the
felony-firearm conviction without notice to either party and without a resentencing hearing. This Court
affirmed.
On appeal to the Supreme Court, the Court addressed the procedural safeguards that must be
afforded a defendant when an invalid sentence is modified. The Court noted that “certain modifications
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of invalid sentences are ministerial in nature and do not require a resentencing hearing; however, other
modifications require the due process protections of a resentencing hearing.” Id. at 98-99. The Court
hesitated to declare the sentence modification in Miles purely ministerial despite the fact that the
inaccuracy involved a mandatory enhancement provision because the defendant’s sentences were based
on inaccurate information in the presentence report.
Here, defendant was subject to the mandatory sentence enhancement provision of MCL
333.7401(3); MSA 14.15(7401)(3) based upon his two present convictions.2 People v Denio, 454
Mich 691; 564 NW2d 13 (1997). Defendant had the opportunity at sentencing to challenge any
information related to the convictions. The sentence imposed by the trial court was invalid solely
because the sentencing court failed to impose statutorily-mandated consecutive sentences. Hence, the
sentence modification at issue is purely ministerial and defendant is not entitled to a resentencing hearing.
Affirmed.
/s/ E. Thomas Fitzgerald
/s/ Richard Allen Griffin
/s/ Kathleen Jansen
1
In our original opinion, People v Burton, unpublished per curiam opinion of the Court of Appeals,
issued October 26, 1994 (Docket No. 156140), we affirmed defendant’s convictions, vacated that
portion of the judgment that imposed concurrent sentences, and ordered the trial court to revise
defendant’s judgment of sentence to reflect that defendant’s sentences are to be served consecutively.
On remand, only the sentencing issue is before us.
2
The sentence imposed for each of the convictions was also mandated by statute. Section
7401(2)(a)(iii) provides that the sentence for violation of the section shall be not less than ten years.
The conspiracy statute, MCL 750.157a; MSA 28.354(1), imposes a penalty equal to that which could
be imposed if the defendant had been convicted of committing the crime he conspired to commit.
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