PEOPLE OF MI V MICHAEL JEFFERY FABER
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
March 17, 2011
Plaintiff-Appellee,
V
No. 295561
Huron Circuit Court
LC No. 09-004732-FH
MICHAEL JEFFERY FABER,
Defendant-Appellant.
Before: WILDER, P.J., and SAAD and DONOFRIO, JJ.
PER CURIAM.
Defendant appeals as of right his jury trial convictions of operating a motor vehicle while
visibly impaired, MCL 257.625(3), which as a third offense was elevated to a felony under MCL
257.625(11)(c), and of operating a vehicle while license was suspended, MCL 257.904(1). The
judgment of sentence indicates that this was a second offense, MCL 257.904(3)(b), but the
judgment is inconsistent with the trial court’s remarks at the close of trial and at sentencing. The
trial court sentenced defendant to two years’ probation, with 60 days in jail, for the license
offense. Defendant argues that the judgment of sentence should be corrected to delete the
reference to second offense. We disagree, and affirm.
At the close of proofs, the prosecutor tendered a certified Secretary of State driving
record indicating that defendant had a previous conviction for driving with a suspended license.
MCL 257.904(9)(b) provides that the driving record was sufficient to establish the prior offense.
The trial court erroneously concluded that it was not sufficient and accordingly, found that the
second offense was not established.
The prosecutor contends that since the trial court erred in requiring more proof, the
designation as a second offense was proper. The prosecutor also asserts that the court’s oral
pronouncement was superseded by the written order in the judgment of sentence.
Defendant did not raise his issue below but filed a motion for remand in this Court, which
was denied. Thus, this issue is preserved for our review. We conclude that the prosecutor was
not required to file a cross-appeal to raise its issue since it is not requesting relief more favorable
than that rendered in the actual judgment of sentence. See Middlebrooks v Wayne County, 446
Mich 151, 166 n 41; 521 NW2d 774 (1994). The prosecutor does not contest that the judgment
of sentence was inconsistent with the court’s oral pronouncement. Rather, the prosecution is in
essence arguing that the designation as a second offense should remain, given the proof of the
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prior conviction. This presents a question of law, which we review de novo. People v Dupree,
486 Mich 693, 702; 788 NW2d 399 (2010).
MCL 257.904 provides in pertinent part:
(1) A person whose operator’s or chauffeur’s license or registration certificate
has been suspended or revoked and who has been notified as provided in section
212 of that suspension or revocation, . . . shall not operate a motor vehicle upon a
highway or other place open to the general public or generally accessible to motor
vehicles, including an area designated for the parking of motor vehicles, within
this state.
***
(3) Except as otherwise provided in this section, a person who violates subsection
(1) . . . is guilty of a misdemeanor punishable as follows:
(a) For a first violation, by imprisonment for not more than 93 days or a fine of
not more than $500.00, or both. . . .
(b) For a violation that occurs after a prior conviction, by imprisonment for not
more than 1 year or a fine of not more than $1,000.00, or both.
The trial court incorrectly failed to enhance the charge of operating while license
suspended with a second or subsequent offense notice. Again, the statute only requires the
prosecutor to demonstrate that defendant was operating a motor vehicle while his driving
privileges were suspended. Proof of that fact may be established by providing the court with a
copy of defendant’s driving record. MCL 257.904(9)(b). The sentence imposed was within the
enhancement parameters set forth in MCL 257.904(3)(b). The judgment of sentence suggests
that the second offense was a substantive offense. Regardless of the suggestion in the judgment
of sentence, the nomenclature utilized is irrelevant. The prosecutor suggests that the decision to
enhance rests with the prosecutor, and that the trial court’s function is in essence ministerial. We
disagree with the prosecutor’s statement. The fact that the court erred in not accepting the
driving record does not reduce the court’s role to a ministerial one. Because the trial court’s
sentencing was within the proper parameters, we need not remand for resentencing. This is a
matter of form rather than substance. We see no practical reason for amending the judgment of
sentence that accurately represents a conviction for operation of a motor vehicle with a prior
suspended license.
Affirmed.
/s/ Kurtis T. Wilder
/s/ Henry William Saad
/s/ Pat M. Donofrio
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