People v. Hathcox

• Decision Date: 02 August 1984
• Docket Number: Docket No. 70453
• Citation: People v. Hathcox, 135 Mich.App. 82, 351 N.W.2d 903 (Mich. App. 1984)
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. David Mark HATHCOX, Defendant-Appellant. 135 Mich.App. 82, 351 N.W.2d 903
• Court: Court of Appeal of Michigan

Page 903

351 N.W.2d 903

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. David Mark HATHCOX, Defendant-Appellant.

Docket No. 70453.

135 Mich.App. 82, 351 N.W.2d 903

Court of Appeals of Michigan.

Submitted Nov. 17, 1983.

Decided June 4, 1984.

Released for Publication Aug. 2, 1984.

[135 MICHAPP 83] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Paul F. Berger, Pros. Atty., and C. Sherman Mowbray, Asst. Pros. Atty., for plaintiff-appellee.

James R. Newhard, State Appellate Defender by Sheila N. Robertson, Detroit, for defendant-appellant on appeal.

Before V.J. BRENNAN, P.J., and KELLY and COOK ^*, JJ.

KELLY, Judge.

Defendant was charged with the [135 MICHAPP 84] malicious destruction of police property, M.C.L. Sec. 750.377b; M.S.A. Sec. 28.609(2), and with resisting arrest, M.C.L. Sec. 750.479; M.S.A. Sec. 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, M.C.L. Sec. 771.3; M.S.A. Sec. 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 N.W.2d 833 (1957), the other in People v. Gallagher, 55 Mich.App. 613, 223 N.W.2d 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, 84 N.W.2d 833. 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, 223 N.W.2d 92. Defendant argues that People v. Becker is [135 MICHAPP 85] 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 N.W.2d 878 (1979), lv. den. 406 Mich. 987 (1979). See also People v. Seda-Ruiz, 87 Mich.App. 100, 273 N.W.2d 602 (1978); People v. American Medical Centers of Michigan, Ltd, 118 Mich.App. 135, 324 N.W.2d 782 (1982), lv. den. 417 Mich. 985 (1983); People v. Rives, 123 Mich.App. 273, 333 N.W.2d 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 N.W.2d 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 M.C.L. Sec. 761.1(g); [135 MICHAPP 86] M.S.A. Sec. 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 N.W.2d 399 (1983). Since the statutory maximum sentence for resisting arrest is two years, the offense is a felony under M.C.L. Sec. 761.1(g); M.S.A. Sec. 28.843(g) and a probation sentence of up to five years may be imposed under M.C.L. Sec. 771.2; M.S.A. Sec. 28.1132. See also, People v. Reuther, 107 Mich.App. 349, 352-353, 309 N.W.2d 256 (1981), and People v Stiles, 99 Mich.App. 116, 121, 297 N.W.2d 631 (1980), lv. den. 410 Mich. 891 (1981).

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

COOK, J., concurred.

V.J. BRENNAN, Presiding Judge, 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...