
    PEOPLE v ALBANE
    Docket No. 96572.
    Submitted April 15, 1987, at Detroit.
    Decided May 18, 1987.
    Vincent Michael Albane was convicted, on his plea of guilty, of delivery of between 50 and 225 grams of cocaine and was sentenced to a lifetime of probation with a provision that the first year be spent in jail, Macomb Circuit Court, Raymond R. Cashen, J. Defendant appealed.
    The Court of Appeals held:
    
    A defendant who is convicted of delivery of cocaine may not be sentenced to a lifetime of probation with the provision that he spend the first year in jail. The remedy on appeal from such a sentence is to set aside the provision for jail time.
    Affirmed except as to the provision for jail time, which is reversed.
    Controlled Substances — Sentencing — Probation — Jail Time — Appeal.
    A defendant who is convicted of delivery of cocaine may not be sentenced to a lifetime of probation with the provision that he spend the first year in jail; the remedy on appeal from such a sentence is to set aside the provision for jail time (MCL 771.3[2], [3]; MSA 28.1133[2], [3]).
    
      Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Carl J. Marlinga, Prosecuting Attorney, Donald Milbourn, Chief Appellate Lawyer, and Edward Graham, Assistant Prosecuting Attorney, for the people.
    
      Matthew R. Rumora, for defendant.
    Before: J. H. Gillis, P.J., and Beasley and Sawyer, JJ._
    References
    Am Jur 2d, Criminal Law §§ 567 et seq.; 583.
    See the annotations in the Index to Annotations under Parole, Probation and Pardon.
   Per Curiam.

Defendant, Vincent Michael Al-bane, pled guilty to delivery of cocaine, more than 50 grams but less that 225 grams, in violation of MCL 333.7401(1) and (2)(a)(iii); MSA 14.15(7401)(1) and (2)(a)(iii). Defendant was sentenced to a term of life on probation with a provision that he spend the first year in the Macomb County Jail.

On appeal, defendant claims that this was an unlawful sentence, in violation of MCL 771.3(3); MSA 28.1133(3), which provides as follows:

(3) Subsection (2) shall not apply to a person who is placed on probation for life pursuant to sections 1(3) and 2(3) of this chapter. [Emphasis added.]

Subsection (2) of MCL 771.3; MSA 28.1133 provides:

(2) As a condition of probation, the court may require the probationer to do 1 or more of the following:
(a) Be imprisoned in the county jail for not more than 12 months, at the time or intervals, which may be consecutive or nonconsecutive, within the probation as the court may determine. However, the period of confinement shall not exceed the maximum period of imprisonment provided for the offense charged if the maximum period is less than 12 months.

We agree with defendant. Consequently, that portion of defendant’s sentence providing for one year in the Macomb County jail is determined to be illegal and is, therefore, set aside. Otherwise, defendant’s conviction and sentence are affirmed.

Affirmed in part and reversed in part.  