People v. Hamilton

269 N.W.2d 693, 84 Mich. App. 601, 1978 Mich. App. LEXIS 2525

Opinion

Per Curiam.

Defendant Henry Hamilton failed to preserve for appeal his argument that revocation of his probation for failure to pay restitution was based on his indigency, and was therefore unconstitutionally discriminatory under the Fourteenth Amendment. US Const, Am XIV. Appeal is therefore precluded. People v Billy Williams, 66 Mich App 67, 72; 238 NW2d 407 (1975).

Furthermore, examination of the record shows that defendant admitted having violated other conditions of probation in addition to nonpayment of restitution.

The trial judge did not err in revoking defendant’s probation, but he did err by sentencing defendant to five to ten years or payment of $7,500. Under the statute as worded, the court was limited to either a sentence of 10 years in prison or a fine of not more than $5,000, not both. Both imprisonment and a fine may not be conjoined in the one sentence so as to make defendant’s ability to pay the determinant of imprisonment were he not able to pay. He may be sentenced to prison or fine, one only.

Remanded to another judge for resentencing.