PEOPLE v. McKEOWN (1998)

Defendant pleaded guilty of violating probation on his underlying conviction of attempted disarming of a police officer, M.C.L. § 750.92;  M.S.A. § 28.287 and M.C.L. § 750.479b;  M.S.A. § 28.747(2), and was sentenced to thirty to sixty months' imprisonment.   He appeals as of right.   We affirm.

Defendant originally pleaded no contest to attempted disarming of a police officer, resisting and obstructing a police officer, M.C.L. § 750.479;  M.S.A. § 28.747, and two counts of domestic violence, M.C.L. § 750.81a(2);  M.S.A. § 28.276(1)(2).   He was sentenced to concurrent terms of five years' probation for the convictions of attempted disarming of a police officer and resisting and obstructing a police officer and ninety-three days in jail for the domestic violence convictions.   One of the conditions of his probation was that the first year of probation was to be served in the county jail.   He subsequently violated his probation by failing to report to the probation department, failing to report a change of address, and driving impaired.

In this appeal, defendant has presented us with an issue of first impression.   Defendant argues that he should be discharged from the conviction of attempted disarming of a police officer because the attempt statute allows for only two alternative sentences, either up to five years in prison or up to one year in jail.   Defendant, therefore, contends that a probationary sentence is not authorized and, because he served a year in jail, he has completed one of the alternative sentences allowed under the attempt statute.   We disagree.

 In construing a statute, our primary obligation is to determine and give effect to the intent of the Legislature.  People v. Burwick, 450 Mich. 281, 287, 537 N.W.2d 813 (1995).   A statute must be construed so as to give full effect to all of its provisions.  Drouillard v. Stroh Brewery Co., 449 Mich. 293, 302, 536 N.W.2d 530 (1995).   If the language of the statute is unambiguous, judicial construction is not required or permitted, and the courts must apply the statute as written.  Turner v. Auto Club Ins. Ass'n, 448 Mich. 22, 27, 528 N.W.2d 681 (1995).

 The penalty for disarming a police officer is a maximum of ten years' imprisonment.  M.C.L. § 750.479b(2);  M.S.A. § 28.747(2)(2).   Therefore, defendant's attempt conviction results in the following statutory punishment:

If the offense so attempted to be committed is punishable by imprisonment in the state prison for life, or for 5 years or more, the person convicted of such attempt shall be guilty of a felony, punishable by imprisonment in the state prison not more than 5 years or in the county jail not more than 1 year.  [M.C.L. § 750.92(2);  M.S.A. § 28.287(2).]

Under M.C.L. § 771.1(1);  M.S.A. § 28.1131(1), the trial court has the discretion of imposing a term of probation for all felonies except murder, treason, criminal sexual conduct in the first or third degree, robbery while armed, and certain major controlled substance offenses.   We note that the Legislature did not include the attempt statute in the list of felonies for which a defendant could not be given probation.   Therefore, according to the unambiguous language of the probation statute, the Legislature evidenced an intent to include probation as another alternative sentence under the attempt statute.   A sentence of probation is an alternative to confining a defendant in jail or prison and is granted as a matter of grace in lieu of incarceration.  People v. Johnson, 210 Mich.App. 630, 633, 534 N.W.2d 255 (1995).   As a condition of probation, the trial court may order the defendant imprisoned in the county jail for not more than twelve months.  M.C.L. § 771.3(2)(a);  M.S.A. § 28.1133(2)(a).

 In the present case, the trial court was faced with three, not two, alternative sentences under the attempt statute and the probation statute.   It could have sentenced defendant to up to five years in prison, up to one year in jail, or a term of probation.   It chose the last option.   The one-year jail sentence served by defendant was a condition of probation and not the sentence imposed.   The sentence imposed was five years' probation.   Because defendant served the one year in jail as a condition of probation and not as a sentence, he is not entitled to discharge.

Affirmed.

PER CURIAM.