People v. Blaney , 139 Mich. App. 694 ( 1984 )

139 Mich. App. 694 (1984) 363 N.W.2d 13

PEOPLE
v.
BLANEY

Docket No. 69872.

Michigan Court of Appeals.

Decided October 12, 1984.

Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Edward J. Grant, Prosecuting Attorney, and Brian E. Thiede and Joseph A. Greenleaf, Appellate Attorneys, for the people.

State Appellate Defender (by Sheila N. Robertson), for defendant on appeal.

Before: DANHOF, C.J., and M.J. KELLY and N.J. KAUFMAN,^[*] JJ.

PER CURIAM.

Defendant pled guilty to receiving and concealing stolen property over $100. He was sentenced to five years' probation, and was assessed costs in the amount of $400 and restitution of $3,635.

Defendant argues that the trial court erred in failing to follow the mandated statutory inquiry as to whether defendant was or would be able to pay restitution during probation. We agree. We remand to the trial court for a determination of defendant's ability to pay restitution, according to MCL 771.3(5); MSA 28.1133(5). The prosecutor in his brief has agreed to this procedure. See People v Lemon, 80 Mich. App. 737; 265 NW2d 31 (1978).

The amount of restitution is reduced to the loss suffered by complainant in the loss of her ring. Although defendant was implicated in a breaking and entering into a home from which the ring and about $4,000 worth of other property was stolen, he denied having any part in the breaking and entering, he pled guilty only to receiving the ring, and the factual basis for his plea concerned only the ring. Testimony from the ring's owner suggested its was worth less than $1,000. Restitution can be imposed only as to a loss caused by the very offense of which the defendant was convicted. People v Becker, 349 Mich. 476, 486; 84 NW2d 833 (1957).

Remanded.

NOTES

[*] Retired Court of Appeals Judge, sitting on the Court of Appeals by assignment.