Elisha Anderson, and Kathleen Gray

Detroit Free Press

State Sen. Virgil Smith started serving his 10-month jail sentence today as punishment for shooting his ex-wife’s Mercedes-Benz, but he never resigned from his job as a legislator.

So, he will continue to receive his $71,685 annual salary plus benefits while serving time behind bars.

Smith, 36, D-Detroit, had agreed to resign from his job as part of a plea deal in the case, but then a judge said he didn’t have authority to impose that as a condition of sentence and took it out of the agreement.

Wayne County Circuit Judge Lawrence Talon said earlier this month that Smith could be expelled, voted out of office or resign, but requiring him to step down violates the state constitution.

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Prosecutors then asked for the plea deal to be voided — and the case scheduled for trial — since Smith didn’t comply with the terms of the agreement.

During today’s hearing, Wayne County Assistant Prosecutor Lisa Lindsey argued that prosecutors should be able to retool their offer in the case.

But Talon rejected the prosecution's request, saying "vacating the plea bargain would not serve the interests of justice.”

The Wayne County Prosecutor's Office vowed to appeal today's decision.

"We believe that the law supports that the agreement remains conditional until all the terms of the agreement are fulfilled," Maria Miller, a spokeswoman for the office, said in a statement issued after the hearing. "Prosecutor (Kym) Worthy will appeal the court’s ruling because the defendant did not fulfill his part of the plea agreement by resigning his elected position."

Smith pleaded guilty to a felony count of malicious destruction of personal property of $20,000 or more in connection with the incident outside his home on Wexford last May and on March 14 was sentenced to 10 months in jail with no early release.

His attorney, Godfrey Dillard, asked the court not to vacate the agreement.

"I’m asking the court to let it stand, allow the senator to stand on principle, stand against what we view is excessive power by the prosecutor,” Dillard said.

Lindsey fired back, saying Dillard was part of the discussionsand said he repeatedly indicated this is what he wanted to do.

“If I was on the street, I’d say counsel is talking out of both sides of his neck," she said.

Before Smith was escorted out of the courtroom by deputies to begin his sentence in the Wayne County Jail, his father, Wayne County Circuit Court Judge Virgil C. Smith, asked permission to give his son a hug.

“I guess my response to that is that I must treat him the same way that I treat everyone else in this position,” Talon responded, before saying "no."

Dillard refused to answer questions from reporters as he left the courtroom, including why his client has decided not to resign from office.

Other state lawmakers have spent a night or two in jail after being arrested for things like drunk driving, but Smith is setting a new precedent, serving as both a state senator and a lengthy sentence, a political expert said.

“The idea of someone serving while being convicted and sentenced on a felony charge, it’s never happened in Michigan,” said Bill Ballenger, a former state Senator and editor of the Ballenger Report, a political newsletter.

Amber McCann, spokeswoman for Senate Majority Leader Arlan Meekhof, R-West Olive, said Smith told Meekhof on Friday that he intends to resign when he begins a jail sentence.

“The resignation has never been based on a plea deal, but rather on the understanding that Sen. Smith cannot serve his constituents while he’s serving time in jail,” she said.

If he doesn’t resign, then expulsion hearings could begin when the Legislature returns from a two-week spring break on April 12.

Any member of the Senate can introduce a resolution asking for the expulsion of another member.

“And it would be up to the Majority Leader’s discretion on how that would proceed,” McCann said.

Until that happens, Smith would continue to receive his salary and benefits.

As part of the deal that was reached in the case, Smith also must serve five years of probation, stay away from alcohol, comply with mental health treatment and not have contact with his ex-wife, Anistia Thomas.

Smith previously told investigators the shots were fired after Thomas pushed her way into his house and attempted to attack a woman in his bed. Thomas, who was in court today, has said Smith punched her and rammed her head into the floor and wall when she was inside his home.

According to information presented in the case, Smith suffers from bipolar depressive hypomanic disorder, had been in car accident in 2014 that caused a traumatic brain injury and was recently treated for alcohol dependency.

Prosecutors agreed to dismiss three felonies at part of the plea deal, including a count of possessing a firearm during the commission of a felony, which carries a mandatory two-year prison sentence, and a misdemeanor count of domestic violence.

Senate Minority Leader Jim Ananich, D-Flint, said on Friday an expulsion hearing will have to happen if Smith doesn’t resign.

Ananich said he asked Smith to resign when he was first arrested, “But the legal process was important to play out. I don’t think it was appropriate for us to have a parallel investigation going on at the same time.”

Only four lawmakers have been expelled from the Michigan Legislature: Rep. Cindy Gamrat, R-Plainwell, who was expelled in September after getting caught up in a sex scandal and bizarre cover-up that also forced the resignation of Rep. Todd Courser, R-Lapeer; Sen. David Jaye, R- Washington Township, in 2001 after three drunken driving convictions and claims that the lawmaker assaulted his fiancée; Rep. Monte Geralds, D-Madison Heights, in 1978, after an embezzling conviction; and Rep. Milo Dakin of Saginaw in 1887 after he was accused of attempting to bribe his colleagues over changes to the Saginaw city charter.

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Contact Elisha Anderson: eanderson@freepress.com