Opinion
Docket No. 68130.
Decided February 8, 1984. Leave to appeal applied for.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, William L. Cahalan, Prosecutor Attorney, Edward Reilly Wilson, Deputy Chief, Civil and Appeals, and Janice M. Joyce Bartee, Assistant Prosecuting Attorney, for the people.
State Appellate Defender (by Chari Grove), for defendant on appeal.
On August 1, 1979, defendant was convicted by a jury of voluntary manslaughter and was thereafter sentenced to a prison term of from 10 to 15 years. Defendant then appealed as of right to this Court which reversed the case and remanded for entry of judgment of conviction of involuntary manslaughter. This Court additionally granted the prosecution the option of vacating that conviction and seeking a new trial. People v Newman, 107 Mich. App. 535; 309 N.W.2d 657 (1981). The Supreme Court denied application for leave to appeal to both parties on December 22, 1981, 412 Mich. 890 (1981). On July 22, 1982, defendant filed a motion to dismiss or, in the alternative, for resentencing, alleging that the trial court had lost jurisdiction to either retry defendant or enter a conviction for involuntary manslaughter. On August 20, 1982, the trial court denied the motion to dismiss and granted the prosecution's motion for resentencing. Defendant was sentenced to from 7 1/2 to 15 years imprisonment and appeals as of right.
Defendant first claims there was a violation of the 180-day rule, MCL 780.131; MSA 28.969(1). We disagree. Defendant's reliance on People v Walker, 111 Mich. App. 641; 314 N.W.2d 721 (1981), is misplaced. The instant case is distinguishable from Walker in that in the case at bar there was no untried information pending and no rearraignment. We find the 180-day rule to be inapplicable herein.
Defendant additionally contends that the trial court failed to respond to defendant's objection to portions of the presentence report and denied defendant his right of allocution. We have examined the record and briefs and find defendant had an adequate opportunity to exercise his right of allocution and the trial court adequately responded to defendant's objections. GCR 1963, 785.12. We find no reversible error.
Affirmed.