People v. Krieger

202 Mich. App. 245 (1993) 507 N.W.2d 749

PEOPLE
v.
KRIEGER

Docket No. 140881.

Michigan Court of Appeals.

Submitted March 2, 1993, at Lansing. Decided August 25, 1993. Approved for publication October 28, 1993, at 9:10 A.M.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, James R. Samuels, Prosecuting Attorney, and Charles D. Hackney, Assistant Attorney General, for the people.

Jeanice Dagher-Margosian, for the defendant on appeal.

Before: MICHAEL J. KELLY, P.J., and MARILYN KELLY and CONNOR, JJ.

PER CURIAM.

This is an appeal from decisions in three Mecosta Circuit Court cases. Defendant argues that the trial court erred in preserving an earlier assessment of court costs and fines after revoking his probation. He asserts, also, that the court lacked authority to order restitution to the county for his medical expenses. We vacate those portions of the judgments of sentence requiring defendant to pay fines, costs and medical expenses.

In case No. 87-2140-FH, defendant pled guilty but mentally ill to attempted false pretenses over $100. MCL 750.92; MSA 28.287; MCL 750.218; MSA 28.415. In case No. 87-2218-FH, he pled guilty but mentally ill to attempted uttering and publishing. MCL 750.92; MSA 28.287; MCL 750.249; MSA 28.446. His sentence in both cases was one year in the county jail and five years' probation. Defendant was assessed $50 in fines and $200 in court costs in each case.

Defendant failed to comply with the terms of his sentences and ultimately pled guilty to violating his probation. His sentence was three years and four months to five years in prison. The court preserved defendant's probation obligation to pay $400 in court costs and $100 in fines.

In case No. 91-2826-FH, defendant pled no contest but mentally ill to false pretenses over $100. MCL 750.218; MSA 28.415. His sentence was three to ten years in prison. The court required defendant to pay $1,659.10 in medical expenses which he had incurred while incarcerated.

I

Defendant argues that the trial court erred in mandating that he have continuing liability for court costs and fines assessed as a condition of probation after probation had been revoked. Without question, a trial court has the authority to award costs and fines as a condition of probation. MCL 771.3; MSA 28.1133. However, its sentencing authority is confined to the limits permitted by the statute under which it acts. People v Jones, 182 Mich. App. 125, 126-127; 451 NW2d 525 (1989), citing People v Tims, 127 Mich. App. 564, 565-566; 339 NW2d 488 (1983). It may not award costs, unless there is "express provision" for them in the underlying statute. See Jones, 127.

If it revokes probation, the trial court may proceed to sentence the probationer in the same manner and to the same penalty as if the probation order had never been entered. MCL 771.4; MSA 28.1134. Here, defendant was convicted of attempted false pretenses over $100 and attempted uttering and publishing. The general attempt statute does not provide for the imposition of fines or costs. MCL 750.92; MSA 28.287. Therefore, the trial court lacked authority to impose costs and fines under that statute.

The prosecutor argues that the probation revocation statute grants the trial court authority to retain previously assessed costs and fines once probation is revoked. The statute provides in part:

All probation orders shall be revocable in any manner which the court which imposed probation shall consider applicable either for a violation or attempted violation of a condition of probation or for any other type of antisocial conduct or action on the part of the probationer which shall satisfy the court that revocation is proper in the public interest. [MCL 771.4; MSA 28.1134.]

There is no "express provision" in the probation revocation statute for the imposition of costs or fines. See Jones, 127. We believe that the language "revocable in any manner which the court ... shall consider applicable" does not mean that the trial court can revoke only a portion of the probation order. In this case, the fines and costs had been assessed as a condition of probation. Once probation was revoked, no outstanding conditions existed. Therefore, we find that the trial court was without authority to retain the imposition of court costs and fines.

II

Defendant also argues that the court erred in requiring him to reimburse the sheriff's department for his medical expenses. During sentencing on the false pretenses conviction, the trial court noted that the sheriff's department requested reimbursement for medical care provided to defendant. Defendant indicated he was willing and able to make restitution. Based on the representation, the trial court assessed defendant $1,659.10 in medical expenses.

The trial court here lacked authority to require defendant to reimburse the county for medical expenses. The penal statute governing the crime of false pretenses does not provide for recoupment of medical expenses. MCL 750.218; MSA 28.415. Moreover, the county may seek reimbursement of medical expenses by a civil action. MCL 801.87; MSA 28.1770(7); MCL 801.5a; MSA 28.1725(1). Having created a civil mechanism for it, the Legislature probably did not intend to give judges authority to compel reimbursement for medical expenses as part of a criminal sentence. See People v Gonyo, 173 Mich. App. 716; 434 NW2d 223 (1988); People v Kramer, 137 Mich. App. 324, 325; 358 NW2d 10 (1984).

We vacate those portions of the judgments of sentence which ordered the payment of fines, court costs and restitution of medical expenses.