
    PEOPLE v CORLIN
    Docket No. 78-5282.
    Submitted November 7, 1979, at Grand Rapids.
    Decided March 4, 1980.
    Thomas D. Corlin was charged with two counts of delivery of a controlled substance. Subsequently, the defendant was convicted, on his plea of guilty, of one count of delivery of a controlled substance, Kent Circuit Court, George R. Cook, J. The defendant was sentenced to 12 months in the Kent County Jail. It immediately became apparent that the presentence report, upon which the sentencing judge relied, erroneously stated that the defendant had pled guilty to a charge of possession of a controlled substance rather than a charge of delivery of a controlled substance. Over the defendant’s objection, the trial court resentenced the defendant to a term of 3 to 7 years for delivery of a controlled substance. The defendant appeals. Held:
    
    Once a trial court imposes a valid sentence, it cannot set aside that sentence and impose a new and different one. However, to be valid, a sentence must be based on accurate information. In the instant case the defendant’s sentence was based on clearly erroneous information contained in the presentence report. The defendant’s first sentence was invalid and the trial court acted properly in resentencing the defendant. This was a correction in the sentence, not a double sentence. There was no double punishment.
    Affirmed.
    Beasley, J., dissented. He would hold that the original sentence was valid since both the prosecutor and the defense attorney called the judge’s attention to the fact he was sentencing for delivery of a controlled substance. He would set aside the second sentence and reinstate the original sentence of 12 months in the county jail.
    References for Points in Headnotes
    [1] 21 Am Jur 2d, Criminal Law § 569.
    [2, 3] 21 Am Jur 2d, Criminal Law §§ 303, 572.
    
      Opinion op the Court
    1. Criminal Law — Sentences — Setting Sentence Aside — Validity op Sentence.
    A sentencing court cannot set aside a valid sentence and impose a new and different one once a valid sentence has been imposed; however, to be valid, a sentence must be based on accurate information.
    2. Criminal Law — Sentences — Guilty Plea — Sentence for Wrong Offense.
    A sentence based upon an offense other than the offense to which a defendant entered a plea of guilty is invalid and after discovery of the error, the trial court has authority to properly sentence the defendant for the offense to which the plea was entered.
    Dissent by Beasley, J.
    3. Criminal Law — Sentences — Plea of Guilty — Validity of Sentence.
    
      A sentence imposed by a trial judge was valid and the trial judge was without authority to rescind the sentence and impose a new and different sentence where, although the presentence report indicated that the conviction was for an offense other than the one to which the defendant had entered a plea of guilty, the judge was informed at sentencing, by both the prosecutor and the defense attorney, of the mistake and of the proper offense for which the defendant was to be sentenced and the judge then proceeded to sentence the defendant.
    
    
      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, David H. Sawyer, Prosecuting Attorney, and Carol S. Irons, Assistant Prosecuting Attorney, for the people.
    
      Walter L. Harrison, for defendant on appeal.
    Before: V. J. Brennan, P.J., and Beasley and G. E. Bowles, JJ.
    
      
       Circuit judge, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.
    
   V. J. Brennan, P.J.

Defendant was originally charged with two counts of delivery of a controlled substance, to-wit: pentobarbital and methaqualone. On August 31, 1978, he pled guilty to one count of delivery of pentobarbital, MCL 335.341(l)(b); MSA 18.1070(41)(l)(b). On October 13, 1978, Judge Cook sentenced defendant to 12 months in the Kent County Jail. Immediately thereupon, it became apparent that the presentence report, upon which Judge Cook relied, erroneously stated that defendant had pled to possession, not delivery, and that the maximum sentence which could be imposed was two years. Judge Cook thereupon adjourned the proceedings one week in order to establish exactly what the conviction was. Defendant’s bond was revoked and he was remanded to Kent County Jail.

On October 20, 1978, defendant was returned to court. Acknowledging that his previous sentencing of defendant was based upon an error contained in the presentence report, Judge Cook, over objection of defense counsel, resentenced the defendant to 3 to 7 years for delivery of pentobarbital, crediting him with the 2 days previously served. The crime for which defendant was originally and erroneously sentenced carried a maximum sentence of 2 years. MCL 335.341(4)(b); MSA 18.1070(41)(4)(b). The crime to which defendant pled guilty carries a maximum sentence of 7 years. MCL 335.341(l)(b); MSA 18.1070(41)(l)(b).

Relying upon People v Fox, 312 Mich 577; 20 NW2d 732 (1945), defendant correctly argues that once the trial court imposes a valid sentence, it cannot set aside that sentence and impose a new and different one. See People v Meservey, 76 Mich 223, 226; 42 NW 1133 (1889), and People v Kelley, 79 Mich 320, 321; 44 NW 615 (1890). To be valid, however, the sentence must be based on accurate information. United States v Tucker, 404 US 443; 92 S Ct 589; 30 L Ed 2d 592 (1972), People v Malkowski, 385 Mich 244, 249; 188 NW2d 559 (1971), People v Zachery Davis, 41 Mich App 683, 692; 200 NW2d 779 (1972). Here defendant’s sentence was based on clearly erroneous information contained in the presentence report.

A sentence based upon an offense to which defendant has not pled guilty is invalid and after discovery of the error the trial court has authority to properly sentence defendant for the offense to which he did plead. In re Pardee, 327 Mich 13, 18; 41 NW2d 466 (1950), and People v Johnson, 60 Mich App 371; 230 NW2d 438 (1975). People v Johnson, supra, is virtually identical to the instant case. In Johnson, defendant pled guilty to charges of gross indecency and assault with intent to rob being unarmed. Based on an error in the presentence report, he was sentenced to two concurrent 3 to 5 year sentences for gross indecency and attempted robbery not armed. When the error was subsequently discovered, the trial court changed one of defendant’s two 3 to 5 year sentences to 5 to 15 years for assault with attempt to rob being unarmed. Upon appeal we affirmed. The error in the Johnson presentence report was not discovered until after sentencing and thus differs from the instant case where there was some discussion as to the existence of a possible mistake prior to sentencing. This factual disparity, however, is a distinction without a difference not requiring a different result.

Defendant also argues that in contravention of North Carolina v Pearce, 395 US 711, 717; 89 S Ct 2072; 23 L Ed 2d 656 (1969), he has been twice punished for the same offense. We disagree. The sentence of 3 to 7 years is a correction of the first sentence, not a double sentence. In re Pardee, supra, at 18.

Affirmed.

G. E. Bowles, J., concurred.

Beasley, J.

(dissenting). I respectfully dissent.

The sentencing was as follows:

"MR. HOEKSTRA [Prosecuting Attorney]: May it please the Court, this is criminal case number 22775, the People of the State of Michigan v Thomas David Corlin. Mr. Corlin is here represented by his attorney, Wade Seys, and is here for purposes of sentencing on the charge of delivery of a controlled substance.

"There may be some confusion here, your Honor; I’ve been informed that the pre-sentence indicates that the charge was possession — yes, and this is a case that I, myself, handled, and I think Mr. Seys would agree that the plea, or the agreement at least, was to plead to a delivery charge.

"MR. SEYS [Defense counsel]: That’s correct.

"THE COURT: Mr. Seys?

"MR. SEYS: I have read the pre-sentence report, your Honor, and I find it complete except for that one exception, and I have no further comment.

"THE COURT: Mr. Corlin, do you have anything to say before sentence is imposed?

"THE DEFENDANT: No.

"THE COURT: It is the sentence or judgment of this Court that you be remanded to the custody of the Kent County Jail for a period of 12 months, with two days credit for time previously served, that sentence to commence October 13, 1978.

"This is a final sentence or judgment of this Court and you can appeal to the Court of Appeals as a matter of right within the next 60 days, and the Clerk is now handing you a form showing you how to take or perfect that appeal, and if you cannot afford an attorney to do it, the People will provide one for you at no cost or expense to yourself.” (Emphasis added.)

I would hold that the trial court imposed a valid sentence upon defendant. Both attorneys called the judge’s attention to the fact that he was sentencing for delivery of a controlled substance, after which he described his sentence as a ñnal sentence, subject to appeal. It was only after sentence that the trial court had second thoughts.

Unlike People v Johnson, this sentence is not based upon an offense to which defendant had not pled guilty. Rather, I would find this case controlled by People v Robert Jackson and People v Fox.

I would vote to set aside the sentence subsequently imposed and to reinstate the initial sentence of 12 months in the county jail. 
      
       60 Mich App 371; 230 NW2d 438 (1975).
     
      
       63 Mich App 249, 255; 234 NW2d 471 (1975).
     
      
       312 Mich 577; 20 NW2d 732 (1945).
     