People v. Hoffer

484 N.W.2d 781, 193 Mich. App. 624

• Court: Michigan Court of Appeals
• Decided: April 20, 1992
• Docket: Docket 127279, 135909
• Status: Published

Opinions

Michael J. Kelly, J.

Defendant pleaded guilty in the Monroe Circuit Court of breaking and entering a motor vehicle with intent to steal property with a value in excess of $5, MCL 750.356a; MSA 28.588(1). On January 10, 1986, defendant was sentenced to five years’ probation. On February 28, 1990, defendant pleaded guilty of violating several of the terms of his probation. Subsequently, the trial court acceded to defendant’s request that he be enrolled in the special alternative to incarceration program. Then, on June 25, 1990, defendant again pleaded guilty of violating his probation. Defendant requested that sentencing for this violation be deferred until December 7, 1990. On that date, defendant was sentenced to forty to sixty’ months imprisonment. Defendant appeals as of right.

Defendant first argues that the trial court abused its discretion under People v Milbourn, 435 Mich 630; 461 NW2d 1 (1990), by imposing a sentence of forty to sixty months’ imprisonment. Defendant claims his sentence violates the principle of proportionality.

Although the sentencing guidelines do not apply to a defendant convicted of probation violation, People v Leske, 187 Mich App 153, 158; 466 NW2d 361 (1991), the forty- to sixty-month sentence imposed in this matter greatly exceeded the guidelines’ recommendation for the underlying breaking and entering conviction and, although defendant was sentenced following release of the Milbourn decision, we are not certain that the trial court had the opportunity to apply the Milbourn principles in this case. There was no mention of that case or of the principle of proportionality. Because the departure in this case was so great, and because we believe that the trial court should apply the principles set forth in Milbourn in the first instance and determine whether the sentence is proportional, we remand this matter for resentencing under Milbourn. For these reasons, we need not and do not reach defendant’s claim of abuse of discretion.

Defendant next argues that the court erred in revoking his probation for failure to pay restitution when the reason for nonpayment was his indigence, citing People v Terminelli, 68 Mich App 635; 243 NW2d 703 (1976); People v Lemon, 80 Mich App 737; 265 NW2d 31 (1978). Defendant’s argument is based on a mischaracterization of the record. The December 7, 1990, sentencing was based on the June 25, 1990, finding that defendant had violated his probation by failing to complete the special alternative to incarceration program.

Defendant’s conviction is affirmed, his sentence is vacated, and the case is remanded for resentencing. We do not retain jurisdiction.

Marilyn Kelly, J., concurred.