People v. Coker , 162 Mich. App. 764 ( 1987 )

Weaver, J.

Following a bench trial, defendant was convicted of larceny from a person, MCL 750.357; MSA 28.589, and was sentenced to from three to ten years in prison. On appeal, this Court remanded to allow defendant to move for resentencing based on the limited issue of whether the trial court had adequately explained its reasons for departing from the sentencing guidelines. At the hearing on remand, the trial judge stated that he could not articulate any better his reasons for departing from the guidelines and, in order to obey the directive of this Court, resentenced defendant to five years’ probation subject to certain conditions, including the condition that defendant serve the first eleven months of his probation in the Wayne County Jail with credit for time served. From this new sentence defendant moves for peremptory reversal. We deny the motion to reverse, and affirm the trial court’s second sentence.

Under his first sentence of from three to ten years, defendant had already served 138 days and due to good behavior was scheduled to be sent to a half-way house where he could visit his family and secure employment. Therefore the new sentence effectively requires defendant to serve approximately six months more jail time than would have been required had the resentencing appeal not succeeded.

However, it is undisputed that defendant’s second sentence of five years’ probation with eleven months in jail was lighter than his first sentence. Even had the sentence been a harsher one, absent an affirmative showing of vindictiveness against the defendant, it was within the sentencing judge’s authority to impose a harsher sentence on resentencing following a successful appeal. See People v McNeal, 156 Mich App 379, 381-382; 401 NW2d 650 (1986). Defendant has not demonstrated an affirmative showing of vindictiveness on the part of the resentencing judge in this case.

Hence we find no additional punishment to flow from imposition of the second sentence and no violation of defendant’s due process rights for exercising a right to appeal. Merely that the sentence is not to defendant’s liking is insufficient reason to overturn the trial court’s sound judgment in following the order of the Court of Appeals on resentencing.

Affirmed.