People v. Littlejohn
People v. Littlejohn
Concurring Opinion
(concurring). I agree that the trial court adequately explained its reasons for imposing a prison term of from four to fifteen years and my conscience is not shocked by the imposition of that sentence upon this defendant. People v Coles, 417 Mich 523; 339 NW2d 440 (1983). I also join in affirming the order of restitution though my reasons for doing so are different than those relied upon by the majority of this panel.
In ordering restitution, the trial court in this case did not cite the particular statute or statutes relied.upon. It is clear, however, that the appropriate authority is 1985 PA 89, MCL 769.1a; MSA 28.1073, which amends Chapter xi of the Michigan Code of Criminal Procedure and for the first time authorizes a sentencing court to order restitution as part of a sentence where a prison term is also imposed. Prior to July 10, 1985, restitution was authorized only as a condition of probation. MCL 771.3; MSA 28.1133.
Both members of the majority have had occasion to consider the scope of a sentencing court’s authority in ordering restitution in the probation context and have broadly interpreted the phrase "course of conduct which gives rise to the conviction.” See People v Alvarado, 142 Mich App 151; 369 NW2d 462 (1985). My review of the few cases addressing the issue reveals that the weight of authority allows restitution for other embezzlements or thefts which have not resulted in convictions. For example, in People v Alvarado, defendant was convicted of embezzling $200 worth of
The majority in this case relies upon these probation cases to justify the $15,000 order of restitution entered in this case for defendant’s conviction of having embezzled a stereo video cassette recorder valued at $699. I wish to reserve judgment on this issue as I believe it to be a significant one and this case presents an inadequate vehicle to conduct the appropriate inquiry.
Defendant in this case did not object below to the order of restitution. Defendant has never filed a motion for resentencing challenging the underlying authority of the court to consider embezzlements for which he has not been convicted or challenging the procedural manner in which the trial court arrived at its $15,000 figure.
The trial court relied upon the predisposition investigation report rather than on any evidentiary hearing in determining the amount of restitution.
July 16, 1985.
Opinion of the Court
Defendant, Mario Wardell Little-john, pled guilty to embezzlement, MCL 750.174; MSA 28.371, and to being an habitual offender, second offense, MCL 769.10; MSA 28.1082. Defendant was sentenced to serve not less than one and one-half nor more than ten years in prison, which sentence was enhanced because of the habitual offender conviction to not less than four nor more than fifteen years in prison. Defendant was also
On appeal, defendant argues that the trial court was without authority to order restitution in the amount of $15,000. Defendant in this case was convicted of one offense which occurred on July 16, 1985. On that date, defendant, while employed by Montgomery Ward in parcel pick-up, removed from the store one video cassette recorder and sold it to his codefendant. Upon being discovered and arrested, defendant admitted to having previously removed other merchandise totalling approximately $15,000 in value.
In the within case, we are dealing with restitution, which is governed by the recently enacted statute, MCL 769.1a; MSA 28.1073, which provides that a court may order a convicted felon 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.” (Emphasis added.) This language is essentially identical to that employed in People v Pettit
Pettit went on to hold that there must be per
Defendant’s other argument on appeal is without merit. The trial court adequately articulated its reasons for imposing a sentence of from one and one-half to ten years in prison, subsequently replaced by an enhanced sentence of from four to fifteen years on the basis of the habitual offender conviction. The court noted that defendant had committed this offense while on probation and that defendant had a past criminal record. The court further considered the fact that defendant had admitted to having engaged in similar embezzlement activities over a period of time. In imposing its sentence, the trial court relied upon the need to protect society, the need to deter others from committing the same offense and its desire to provide for defendant’s rehabilitation. We find not only that the trial court adequately explained its
Affirmed.
88 Mich App 203, 205-206; 276 NW2d 878 (1979).
87 Mich App 100,102-103; 273 NW2d 602 (1978).
142 Mich App 151, 160-165; 369 NW2d 462 (1984).
People v Coles, 417 Mich 523; 339 NW2d 440 (1983).
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