Summary
holding that the defendant who pleaded guilty to writing a nonsufficient funds check of $1,400 could be ordered to pay more than $17,000 in restitution for writing other nonsufficient funds checks
Summary of this case from People v. FosterOpinion
Docket No. 105558.
Decided November 22, 1988.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Thomas A. Hallin, Prosecuting Attorney, and David Batdorf-Barnes, Assistant Prosecuting Attorney, for the people. Douglas Hamel, and Frank Singer, for defendant on appeal.
Before: DANHOF, C.J., and KELLY and BEASLEY, JJ.
Defendant pled guilty to one count of writing a nonsufficient funds check over $200, MCL 750.131(3)(c); MSA 28.326(3)(c), pursuant to a plea bargain. He was sentenced to serve 111 days in the Livingston County Jail, with credit for time served. The lower court also placed defendant on probation for three years and ordered that he pay $18,835.41 in restitution as a condition of his probation. The charge to which defendant pled guilty involved a $1,400 check. Defendant's only claim is that the lower court improperly conditioned his probation on the payment of restitution for offenses of which he had not been convicted. We affirm.
Defendant relies on our Supreme Court's statement that restitution can be imposed only as to loss caused by the very offense of which the defendant was tried and convicted. People v Becker, 349 Mich. 476, 486; 84 N.W.2d 833 (1957). We must consider Becker in light of its facts and subsequent decisions by this Court in order to determine its proper application. See People v Heil, 79 Mich. App. 739, 742-747; 262 N.W.2d 895 (1977).
In People v Nawrocki, 8 Mich. App. 225; 154 N.W.2d 45 (1967), the defendant was convicted of uttering and publishing a forged check. He claimed that his order of probation was erroneous because it required him to pay for other forged checks which he uttered and published. This Court found that MCL 771.3; MSA 28.1133 authorized such restitution. Nawrocki, supra, p 227.
In People v Gallagher, 55 Mich. App. 613; 223 N.W.2d 92 (1974), lv den 393 Mich. 766 (1974), the defendant was convicted of receiving the cowl, worth at most $1,500, from a stolen car. A condition of the defendant's probation was that he pay restitution of $6,277.84, which was what an insurer had paid for the car theft loss. The Gallagher Court distinguished Becker's facts and pointed out that in Becker, four of the eight justices concurred only in the result and the language relied on by the defendant was unnecessary. 55 Mich. App. 618. This Court affirmed the trial court's requirement that the defendant pay the value of the stolen car. Gallagher, supra, p 621.
In People v Seda-Ruiz, 87 Mich. App. 100; 273 N.W.2d 602 (1978), the defendant pled guilty to passing three nonsufficient funds checks. A condition of his probation was that he make restitution for these three checks and many others. This Court noted that Nawrocki and Gallagher set forth the principle permitting the trial court to require such repayment. This condition of probation was in keeping with the principle of justice of restitution requiring the perpetrator of the offense to pay back the entire amount obtained by his course of criminal conduct. Seda-Ruiz, supra, pp 102-103. See also People v Pettit, 88 Mich. App. 203, 206; 276 N.W.2d 878 (1979), lv den 406 Mich. 987 (1979).
Most recently, in People v Littlejohn, 157 Mich. App. 729; 403 N.W.2d 215 (1987), this Court affirmed a $15,000 restitution order which arose from the defendant's pleading guilty to embezzling one video cassette recorder. This Court found that restitution was governed by the then-recently enacted statute, MCL 769.1a; MSA 28.1073, which provides that a court may order a person convicted of any felony or misdemeanor to make full or partial restitution to the victim of the defendant's course of conduct which gives rise to the conviction or to the victim's estate. See also MCL 780.766; MSA 28.1287(766). This language is essentially identical to that employed in Pettit and Seda-Ruiz.
We conclude that the lower court properly ordered defendant to pay restitution to the victims of his course of criminal conduct. Although some of the restitution was based on nonsufficient funds checks for which defendant was not convicted, those checks were part of the course of conduct which gave rise to his conviction. We note that defendant does not dispute the amount of his liability to his victims.
Affirmed.