People v. Orweller, Docket No. 136112

• Decision Date: 19 November 1992
• Docket Number: Docket No. 136112
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Mark Alan ORWELLER, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 753

494 N.W.2d 753

197 Mich.App. 136

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Mark Alan ORWELLER, Defendant-Appellant.

Docket No. 136112.

Court of Appeals of Michigan.

Submitted July 15, 1992, at Lansing.

Decided Aug. 5, 1992.

Approved for Publication

Nov. 19, 1992, at 9:00 a.m.

Released for Publication Feb. 17, 1993.

Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., Charles D. Sherman, Pros. Atty., and Michael E. Clarizio, Asst. Pros. Atty., for People.

Jeanice Dagher-Margosian, Ann Arbor, for defendant on appeal.

Before SAWYER, P.J., and CONNOR and A.G. BEST, II, ^* JJ.

PER CURIAM.

Defendant Mark A. Orweller appeals from a January 9, 1991, order of probation following his plea-based convictions of operating a motor vehicle without insurance, M.C.L. Sec. 500.3102(2); M.S.A. Sec. 24.13102(2), and operating a motor vehicle while having an unlawful blood alcohol level, M.C.L. Sec. 257.625(2); M.S.A. Sec. 9.2325(2). We affirm in part, reverse in part, and remand.

Defendant was driving his automobile in Clinton County on the night of August 5, 1990. He admits that he did not have insurance when he drove the vehicle. Defendant's description of the incident is as follows:

I went to [the] bar for a couple of drinks with my girlfriend. She got up and left without saying anything, so I followed her to give her a ride home. She didn't say anything, so I got mad. Being madly drunk made me drive like a maniac. And I ended up taking a corner too fast and driving through a building. Which embarrassed the store and me greatly.

Defendant was initially charged with malicious destruction of a building, M.C.L. Sec. 750.380; M.S.A. Sec. 28.612, in addition to the insurance and the drunken driving offenses.

Defendant entered into a plea agreement whereby he would plead guilty to the drunken driving and insurance offenses and the prosecution would drop the malicious destruction charge. At sentencing, the prosecutor indicated that he was concerned that no restitution had been recommended in the presentence investigation report. After hearing argument by the prosecution and defendant, the court ordered that defendant pay restitution in the amount of $9,600 during his two-year probationary period. When the order of probation was entered, it contained a provision requiring defendant to pay restitution of $10,278 at $430 a month. There were no statements in the order explaining why the amount was increased from $9,600 to $10,278.

Defendant argues that the trial court was without authority to order restitution in this case because the owner of the building was insured and his carrier had an opportunity to seek reimbursement from an uninsured motorist fund created under the Motor Vehicle Accident Claims Act, M.C.L. Sec. 257.1101 et seq. ; M.S.A. Sec. 9.2801 et seq. We disagree.

Pursuant to M.C.L. Sec. 780.766(2); M.S.A. Sec. 28.1287(766)(2), a sentencing court may, in addition to or in lieu of any statutory penalty, order a defendant to make restitution to any "victim" of the defendant's course of conduct. We have held that an insurance company may qualify as a victim for purposes of restitution. See People v. Norman, 183 Mich.App. 203, 206, 454 N.W.2d 393 (1989); People v. Washpun, 175 Mich.App. 420, 438 N.W.2d 305 (1989). Section 16(10) of the Crime Victim's Rights Act, being M.C.L. Sec. 780.766(10); M.S.A. Sec. 28.1287(766)(10), states in part as follows:

The court shall not order restitution with respect to a loss for which the victim or victim's estate has received or is to receive compensation, including insurance, except that the court may, in the interest of justice, order restitution to the crime victims compensation board or to any individuals, organizations, partnerships corporations, or governmental entities that have compensated the victim or the victim's estate for such a loss to the extent of the compensation paid. [Emphasis added.]

Just as the Legislature intended to include insurance companies as victims for the purposes of restitution when it amended this section, Norman, supra 183 Mich.App. at 206, 454 N.W.2d 393, so too did the Legislature intend to include the state as a victim to whom compensation may be paid for a defendant's criminal conduct.

Defendant seeks to distinguish this case from Norman and Washpun because the insurance company can seek reimbursement through the Motor Vehicle Accident Claims Act. However, defendant's argument ignores common principles of subrogation. If, when the court ordered restitution to the insurance company, the insurance company was already compensated through the uninsured motorist fund, then the state would have a right to any amount of restitution ordered to offset its payment to the insurance company. In fact, M.C.L. Sec. 257.1106(4) M.S.A. Sec. 9.2806(4) provides that when an amount is paid out of the fund, the Secretary of State is subrogated to the rights of the "person" to whom the amount is paid. "Person," as defined in the act, includes corporations such as insurance companies. See M.C.L. Sec. 257.1102(e); M.S.A. Sec. 9.2802(e). Thus, under the terms of the statute, the Secretary of State may be subrogated to the rights of either the insurance company (as a person applying for reimbursement under the act) or the actual victim. We see no reason why the state's right to subrogation would not include a right to recover any restitution to which the actual victim or insurance company would otherwise have been entitled.

When the court ordered defendant to pay restitution in this case, it stated that defendant should be "responsible to respond in damages for acts of his negligence." Defendant argues that even if it was permissible for the sentencing court to order restitution, the court blurred the distinction between a civil remedy and the criminal penalty of restitution. We agree that the court abused its discretion in the manner in which it ordered restitution and remand for further findings consistent with the statute.

This Court has held that restitution is not a substitute for civil damages, but encompasses only those losses that are easily ascertained and are a direct result of a defendant's criminal conduct. People v. Tyler, 188 Mich.App. 83, 89, 468 N.W.2d 537 (1991). M.C.L. Sec. 780.767(1); M.S.A. Sec. 28.1287(767)(1) contains the following guidelines for a court to follow:

The court, in determining whether to order restitution under section 16 and the amount of that restitution, shall...