People v. Hathcox , 135 Mich. App. 82 ( 1984 )

135 Mich. App. 82 (1984) 351 N.W.2d 903

PEOPLE
v.
HATHCOX

Docket No. 70453.

Michigan Court of Appeals.

Decided June 4, 1984.

Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Paul F. Berger, Prosecuting Attorney, and C. Sherman Mowbray, Assistant Prosecuting Attorney, for plaintiff.

State Appellate Defender (by Sheila N. Robertson), for defendant on appeal.

Before: V.J. BRENNAN, P.J., and M.J. KELLY and G.R. COOK,^[*] JJ.

M.J. KELLY, J.

Defendant was charged with the malicious destruction of police property, MCL 750.377b; MSA 28.609(2), and with resisting arrest, MCL 750.479; MSA 28.747. Pursuant to a plea bargain, defendant pled guilty to the charge of resisting arrest in exchange for a dismissal of the malicious destruction charge. Defendant was subsequently sentenced to three years probation with the first four months to be served in the county jail and was ordered to pay restitution in the amount of $960.27 for damages to a police car with which he had allegedly collided in the course of a chase. Defendant appeals as of right, raising two issues.

Defendant first contends that the condition of restitution to his sentence is improper. We agree. While a sentencing court is given wide latitude in imposing conditions of probation, including restitution, MCL 771.3; MSA 28.1133, such authority is not without limits.

In debating the legality of the condition of restitution imposed in this case, the defendant and the prosecution have framed the issue as a choice between two conflicting rules of restitution, one announced in People v Becker, 349 Mich. 476; 84 NW2d 833 (1957), the other in People v Gallagher, 55 Mich. App. 613; 223 NW2d 92 (1974), lv den 393 Mich. 766 (1974). In People v Becker, with four justices concurring in the opinion and four justices concurring in the result only, the Supreme Court held that restitution "can be imposed only as to loss caused by the very offense for which defendant was tried and convicted". 349 Mich. 486. In People v Gallagher, this Court held that restitution may be imposed for "the whole loss caused by a course of criminal conduct upon conviction of a crime arising out of that conduct". 55 Mich. App. 618. Defendant argues that People v Becker is controlling and mandates that the restitution condition of his probation sentence be vacated.

We, however, do not see any need to discuss the conflict between Becker and Gallagher since we find that the condition of restitution imposed upon defendant is improper even under the Gallagher rule. This Court has consistently held that, in cases where restitution is imposed as part of a criminal sentence, "there must be persuasive support in the record for the sentencing judge's conclusion that the losses for which restitution is ordered were caused by the criminal conduct of the defendant". People v Pettit, 88 Mich. App. 203, 207; 276 NW2d 878 (1979), lv den 406 Mich. 987 (1979). See also People v Seda-Ruiz, 87 Mich. App. 100; 273 NW2d 602 (1978); People v American Medical Centers of Michigan, Ltd, 118 Mich. App. 135; 324 NW2d 782 (1982), lv den 417 Mich. 985 (1983); People v Rives, 123 Mich. App. 273; 333 NW2d 249 (1983), lv den 417 Mich. 1099 (1983).

In this case, there was no evidence or testimony introduced at the plea-taking hearing from which to conclude that defendant was involved in an automobile collision with the police. Nor is there any evidence regarding damage to police property resulting from defendant's criminal conduct in avoiding arrest. Defendant cannot be held criminally liable for conduct to which he never pled guilty or for which he was never tried and convicted. People v Winquest, 115 Mich. App. 215; 320 NW2d 346 (1982). The condition of restitution imposed as part of defendant's sentence is vacated.

Defendant next argues that the trial court improperly imposed a three-year probation sentence for a two-year misdemeanor conviction. The Michigan Supreme Court has recently decided that an offense is a felony, as defined under MCL 761.1(g); MSA 28.843(g), "so long as the statutory maximum is for more than one year, regardless of the mandatory minimum". People v Blythe, 417 Mich. 430, 437; 339 NW2d 399 (1983). Since the statutory maximum sentence for resisting arrest is two years, the offense is a felony under MCL 761.1(g); MSA 28.843(g) and a probation sentence of up to five years may be imposed under MCL 771.2; MSA 28.1132. See, also, People v Reuther, 107 Mich. App. 349, 352-353; 309 NW2d 256 (1981), and People v Stiles, 99 Mich. App. 116, 121; 297 NW2d 631 (1980), lv den 410 Mich. 891 (1981).

Conviction affirmed. Sentence modified, the restitution order being vacated.

G.R. COOK, J., concurred.

V.J. BRENNAN, P.J. (dissenting).

I respectfully dissent.

I feel that restitution is proper here and that the damages were caused by the defendant's criminal conduct. The record is replete with discussions between the parties and the court which clearly indicate that defendant's conduct caused certain damage. Regardless of what count defendant pled guilty to, the court indicated that it was going to impose some restitution for repayment. The record is also clear that defendant could have been convicted of both counts because of the overwhelming evidence. Thus, the trial court gave him a break by dismissing a count so it would not appear on defendant's record.

I would find that restitution may be ordered as to the damage caused by a course of criminal conduct for which a defendant has been convicted. People v Gallagher, 55 Mich. App. 613; 223 NW2d 92 (1974), lv den 393 Mich. 766 (1974).

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.