Opinion
Docket No. 114904.
Decided November 27, 1989.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, George B. Mullison, Prosecuting Attorney, and Martha G. Mettee, Assistant Prosecuting Attorney, for the people.
State Appellate Defender (by Sheila N. Robertson), for defendant on appeal.
Before: SHEPHERD, P.J., and DOCTOROFF and MARILYN KELLY, JJ.
Defendant appeals as of right his plea-based conviction for arson of a dwelling house, MCL 750.72; MSA 28.267. In exchange for defendant's plea and his agreement to "make full and complete restitution to the victim and/or insurance company, according to the statute . . .," a nolle prosequi was entered as to a count for breaking and entering, MCL 750.110; MSA 28.305, and a supplemental information charging defendant as an habitual offender, fourth offense, MCL 769.12; MSA 28.1084, was dismissed. Defendant was sentenced to a prison term of from five to twenty years and, pursuant to the plea arrangement, was ordered to pay $44,000 to the insurance company which had reimbursed the victim. The trial court's order stated that it retained jurisdiction "until the insurer is fully and completely compensated."
On appeal, defendant argues that his sentence should shock our conscience. He also argues that, at the time of this offense, there was no statutory authority for restitution to a reimbursing insurance company and that the trial court exceeded its authority by attempting to retain jurisdiction until the insurer was compensated. We affirm defendant's conviction and sentence as modified herein.
At sentencing, the trial court noted defendant's "terrible record," the seriousness of the crime in terms of danger to other persons, the extensive property damage, and the fact that defendant's motive was either to cover up a breaking and entering and theft or to extract revenge against his brother-in-law. The trial court's reasons for exceeding the guidelines were rehabilitation, punishment protection of society and a warning to others. Our conscience is not shocked by defendant's sentence. People v Coles, 417 Mich. 523; 339 N.W.2d 440 (1983).
Defendant next argues that two statutes which authorize restitution, MCL 769.1a(8); MSA 28.1073(8) and the version of MCL 780.766(10); MSA 28.1287(766)(10) which was in effect at the time of the arson and which at that time was identical to MCL 769.1a(8); MSA 28.1073(8), have been interpreted by this Court in People v Jones, 168 Mich. App. 191; 423 N.W.2d 614 (1988), lv den 431 Mich. 873 (1988), to preclude from an order of restitution the reimbursing of an insurance company's loss. We disagree.
The issue in Jones was the amount of restitution to be paid to the victim. The panel was unable to determine from the record which items were covered by the restitution order, whether the victim had been compensated through insurance for those items and, consequently, whether restitution was precluded. Id., 197. On remand, the sentencing court was ordered to "determine whether restitution is precluded because the victims have been compensated for their loss by their insurance company." Id. Hence, Jones precludes double dipping by a victim, but does not address whether an order of restitution can include the reimbursing of an insurance company's loss.
People v Washpun, 175 Mich. App. 420; 438 N.W.2d 305 (1989), interpreted the version of MCL 780.766(10); MSA 28.1287(766)(10) which was in effect at the time of the arson in this case. Washpun held, and we agree, that restitution may be ordered to a reimbursing insurance company. MCL 780.766(10); MSA 28.1287(766)(10) was amended, effective June, 1988, to specifically include corporations as parties which could be compensated by restitution. That amendment was in effect when defendant agreed, as part of his plea, to make restitution to the victim and/or the insurance company according to the statute. In any case, we agree with Washpun that the trial court had statutory authority to order restitution to the reimbursing insurance company.
Defendant finally claims that the trial court erred in retaining jurisdiction over defendant until the insurer was fully and completely compensated. Defendant's reliance on People v Whalen, 412 Mich. 166; 312 N.W.2d 638 (1981), and Oakland Co Prosecutor v 52nd Dist Judge, 172 Mich. App. 557; 432 N.W.2d 322 (1988), is misplaced. Those cases deal with a trial court's lack of authority to resentence or modify a sentence after the imposition of a valid sentence, issues not involved in this appeal.
When a court issues an order and that order is violated, the case returns to the court for enforcement. The restitution statute provides: "An order of restitution may be enforced by the prosecuting attorney or a victim or a victim's estate named in the order to receive the restitution in the same manner as a judgment in a civil action." MCL 780.766(15); MSA 28.1287(766)(15). Subsection 16 of the statute, MCL 780.766(16); MSA 28.1287(766) (16), provides for penalties for failure to pay restitution. Clearly, the trial court does retain jurisdiction to enforce its orders.
The precise issue in this case is whether the trial court retains indefinite jurisdiction. The answer is found in subsection 12 of the statute, MCL 780.766(12); MSA 28.1287(766)(12), which provides as follows:
If not otherwise provided by the court under this subsection, restitution shall be made immediately. However, the court may require that the defendant make restitution under this section within a specified period or in specified installments. The end of the period or the last installment shall not be later than the following:
(a) The end of the period of probation, if probation is ordered.
(b) Two years after the end of imprisonment or discharge from parole, whichever occurs later, if the court does not order probation.
(c) Three years after the date of sentencing in any other case.
The trial court's order is modified to comport with MCL 780.766(12); MSA 28.1287(766)(12). Nothing in this opinion prevents either defendant from seeking relief from the order of restitution pursuant to subsection 14, MCL 780.766(14); MSA 28.1287(766)(14), or the insurance company from enforcing the order pursuant to subsection 15, MCL 780.766(15); MSA 28.1287(766)(15).
Affirmed as modified.