Opinion
Docket No. 20354.
Decided January 9, 1975.
Appeal from Lenawee, Rex B. Martin, J. Submitted Division 2 December 9, 1974, at Lansing. (Docket No. 20354.) Decided January 9, 1975.
Edward G. Double was convicted, on his plea of guilty, of larceny in a building. From the revocation of a prior order of probation and a new order of probation including a 60-day jail sentence, defendant appeals. Affirmed.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Harvey A. Koselka, Prosecuting Attorney (Prosecuting Attorneys Appellate Service, Edward R. Wilson, Director, by Howard C. Marderosian, of counsel), for the people.
Roger L. Wotila, Assistant State Appellate Defender, for defendant.
Before: DANHOF, P.J., and BASHARA and ALLEN, JJ.
Defendant pled guilty to larceny in a building contrary to MCLA 750.360; MSA 28.592. On June 8, 1972, defendant was placed on probation for a period of five years. One of the conditions of probation was that defendant pay $20 per week until the court costs and certain restitution payments had been discharged. Defendant, despite having been warned by the trial court on a number of occasions that he must make the payments, paid only $25 between the time of the original sentence and March 22, 1974. On that date, the trial court found defendant to be in violation of the conditions of his probation and thereupon again placed defendant on probation, but with the additional provision that defendant serve 60 days in the county jail. From the revocation of the prior order of probation and the new order of probation including the 60-day jail sentence, defendant appeals as of right.
On appeal, defendant argues that the 60-day jail sentence denied him his right to equal protection of the law, since it was the result of his inability to make the periodic payments. We need not decide whether it is a denial of equal protection of the law where an order of probation is held to have been violated because of the probationer's inability to make periodic payments toward court costs and restitution. It will suffice to say that the record before us does not support the allegation that defendant was, in fact, unable to make the required payments. Indeed, defendant himself admitted on the record that he had the money necessary to make the required payments. He was employed at the time the sentence was imposed.
We do not agree that the recent case of People v Hernandez, 53 Mich. App. 91; 218 N.W.2d 394 (1974), is dispositive in favor of defendant. In that case the indigent defendant was given a $2,000 fine or an additional one year in prison if he could not pay the fine. There is a great distinction between imposing an immediate payment of fine and the situation in the instant case of imposing a jail sentence only after a one-year-and-nine-month period during which defendant, though from time to time gainfully employed, failed to make payments previously ordered by the court.
We would further note that defendant at no time requested that the trial court amend the probation order to include a payment schedule at a lesser amount. Under the circumstances we cannot say that the trial court's actions were unreasonable.
Affirmed.