People v. Carl Smith

M. F. Cavanagh, J. Defendant pled guilty to the charge of taking indecent liberties, MCLA 750.336; MSA 28.568, 1 and was sentenced to two years probation with the first year to be spent in the Ingham County jail, pursuant to MCLA 771.3; MSA 28.1133. Less than two months after sentencing defendant escaped from custody and left the state. He was apprehended several months later when he returned to Lansing and pled guilty to escaping custody. Defendant’s probation was subsequently revoked for violating a criminal law by escaping jail and for leaving the state without the court’s consent, contrary to two of the provisions of the probation order. He was sentenced to a term in prison of 5 to 10 years. When the trial court sentenced defendant for violation of probation, it amended its original order of probation to bring the period of incarceration within the limits of the statute. In this appeal defendant first claims that since the incarceration term of the initial order of probation did not comply with the statute, it was *249 invalid and defendant therefore could not be held to violate such an order. To be valid, an order of probation must comply with statutory requirements. In re Cramer, 335 Mich 150; 55 NW2d 772 (1952), citing Hill v Hill, 322 Mich 98; 33 NW2d 678 (1948). MCLA 771.3; MSA 28.1133, provides, in part: "As a condition of probation, the court may require the probationer to be imprisoned in the county jail or the house of correction for not more than 6 months, at such time or intervals, which may be consecutive or nonconsecutive, within the probation period as the court in its discretion may determine, or that he shall pay immediately or within the period of his probation, a fine imposed at the time of being placed on probation, or both, in the discretion of the court; but the period of confinement shall not exceed the maximum period of imprisonment provided for the offense charged if such maximum period is less than 6 months.” Several cases dealing with the validity of a portion of an order of probation impliedly indicate that where one condition of probation is found to be invalid, it does not necessarily follow that the whole order is invalid. People v Peterson, 62 Mich App 258, 270; 233 NW2d 250 (1975), People v Becker, 349 Mich 476; 84 NW2d 833 (1957), and People v Good, 287 Mich 110; 282 NW 920 (1938). The trial court’s correction of the initial infirm order was valid. See In re Cramer, supra. Consonant with the above cases, we hold that, where one of the conditions of probation is in violation of statute, the whole order of probation is not thereby invalid. The ordinary remedy, as in the above cases, is remand for entry of a proper order of probation. In the present case, the trial court has already corrected its error. Furthermore, the probation condition requiring imprisonment in *250 jail was valid, except to the extent that it required more than six months confinement. Since defendant had served less than six months under the original order, he was not prejudiced by the sentence of 12 months confinement. Defendant alternatively asserts in this appeal that during the time he was in jail he was not on probation, as incarceration and probation are mutually exclusive, therefore, any acts committed by the defendant during the period in which he was to be incarcerated cannot be considered acts which would constitute a probation violation. This assertion is without merit. MCLA 771.3; MSA 28.1133 clearly indicates that the imposition of jail time pursuant thereto is a condition of probation. It is equally clear that any acts committed by defendant during the period in which he was to be incarcerated may be acts in violation of that probation. Cf. People v Cammon, 61 Mich App 315, 318; 232 NW2d 399 (1975). Affirmed. Footnotes [1] Repealed, 1974 PA 266. See, now, MCLA 750.520a et seq.; MSA 28.788(1) etseq.