Opinion
Docket No. 80578.
Decided July 26, 1985.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Steven L. Pence, Prosecuting Attorney, and Jann Ryan Baugh, Assistant Attorney General, for the people.
Michael J. Manning, for defendant on appeal.
Defendant pled guilty to one count of larceny in a building, MCL 750.360; MSA 28.592. He was sentenced to four years' probation, the first year to be spent in jail with 59 days' credit given for time already served. Defendant was also ordered to pay over the period of probation $300 in costs and restitution in the amount of $290 to Mr. Mulvaney of the Montgomery Ward Store which was the subject of the instant charge and $5,409.25 to Mr. King of the Kobas Electric Store, which was the location of another burglary in which defendant was implicated but never charged.
Defendant contends that the trial court erred in failing to make the mandated statutory inquiry as to whether defendant was or would be able to pay the restitution during probation. After reviewing the record, we agree. Because such an inquiry is mandated by statute, People v Gleason, 139 Mich. App. 445, 448; 363 N.W.2d 3 (1984), we vacate the restitution provision in the probation order and remand this cause to the sentencing court for a determination of defendant's ability to pay restitution in accordance with MCL 771.3(5); MSA 28.1133(5). See also People v Blaney, 139 Mich. App. 694, 695; 363 N.W.2d 13 (1984).
At oral argument, defendant also contended that he can be ordered to pay restitution only to Mr. Mulvaney of Montgomery Ward, as that was the only offense to which he pled guilty and was convicted. Defendant is correct. The record reveals that he was charged only with larceny in a building at Montgomery Ward and the factual basis for his plea concerned only that incident. Restitution can be imposed constitutionally only for a loss caused by the very offense of which the defendant was convicted. People v Becker, 349 Mich. 476, 486; 84 N.W.2d 833 (1957); People v Blaney, supra. Therefore, the amount of restitution is reduced to $290 to be paid to Mr. Mulvaney.
Remanded for proceedings consistent with this opinion.