Dеfendant Mark A. Orweller appeals from a January 9, 1991, order of probation following his plea-based convictions of operating a motor vehicle withоut insurance, MCL 500.3102(2); MSA 24.13102(2), and operating a motor vehicle while having an unlawful blood alcohol level, MCL 257.625(2); MSA 9.2325(2). We affirm in part, reverse in part, and remand.
Defendant was driving his autоmobile in Clinton County on the night of August 5, 1990. He admits that he did not have insurance when he drove the vehicle. Defendant’s description of the incident is as follows:_
I went to [the] bar fоr a couple of drinks with my girlfriend. She got up and left without saying anything, so I followed her to give her a ride home. She didn’t say anything, so I got mad. Being madly drunk made me drive like a maniaс. And I ended up taking a corner too fast and driving through a building. Which embarrassed the store and me greatly.
Defendant was initially charged with malicious destruction of a building, MCL 750.380; MSA 28.612, in addition to the insurance and the drunken driving offenses.
- Defendant entered into a plea agreement whereby he would plead guilty to the drunken driving and insurance offenses and the prosecution would drop the malicious destruction charge. At sentencing, the prosecutor indicated that he was concerned that no restitution hаd been recommended in the presentence investigation report. After hearing argument by the prosecution and defendant, the court ordered that defеndant pay restitution in the amount of $9,600 during his two-year probationary period. When the order of probation was entered, it contained a provision requiring defendant to pay restitution of $10,278 at $430 a month. There were no statements in the order explaining why the amount was increased from $9,600 to $10,278.
Defendant argues that the trial cоurt was without authority to order restitution in this case because the owner of the building was insured and his carrier had an opportunity to seek reimbursement from an uninsured motorist fund created under the Motor Vehicle Accident Claims Act, MCL 257.1101 et seq.; MSA 9.2801 et seq. We disagree.
Pursuant to MCL 780.766(2); MSA 28.1287(766) (2), a sentencing court may, in addition to or in
The court shall not order restitution with respect to a loss for which the victim or victim’s estatе has received or is to receive compensation, including insurance, except that the court may, in the interest of justice, order restitution to the crimе victims compensation board or to any individuals, organizations, partnerships, corporations, or governmental entities that have compensated the victim or the victim’s estatе for such a loss to the extent óf the compensation paid. [Emphasis added.]
Just as the Legislature intended to include insurance companies as victims for the рurposes of restitution when it amended this section, Norman, supra at 206, so too did the Legislature intend to include the state as a victim to whom compensation may be paid for a defendant’s criminal conduct.
Defendant seeks to distinguish this case from
Norman
and
Washpun
because the insurance company can seek reimbursement through the Motor Vehicle Accident Claims Act. However, dеfendant’s argument ignores common principles of subrogation. If, when the court ordered restitution to the insurance company, the insurance company wаs already compensated through the uninsured motorist fund, then the state would have a right to
When the court ordered defendant to pay restitution in this case, it stated that defendant should be "responsible to respond in damages for acts of his negligence.” Defendant argues that even if it was permissible for the sentencing court to order restitution, the court blurred the distinction between a civil remedy and the criminal penalty of restitution. We agree that the court abused its discretion in the manner in which it ordered restitution and remand for further findings consistent with the statute.
This Court hаs held that restitution is not a substitute for civil damages, but encompasses only those losses that are easily ascertained and are a direct result of a defеndant’s criminal conduct.
People v
Tyler,
The court, in determining whether to order restitution under section 16 and the amount ofthat restitution, shall consider the amount of the loss sustained by any victim as a result of the offense, the financial resources and earning ability of the defendant, the financiаl needs of the defendant and the defendant’s dependents, and such other factors as the court considers appropriate.
Where a sentencing сourt fails to properly apply the procedural requirements of the statute, remand is appropriate. See Tyler, supra.
In this case, the sentencing court failed to comply with the provisions of the statute. The court did not make an adequate inquiry into the actual amount of the victim’s loss. When the prosecutor stated that he was concerned that restitution had not been ordered, he indicated that the owner of the building into which defendant drove testified at the preliminary examination that he suffered $14,000 in damages. Defendant contended that he received a letter from the insurance company indicating that it paid $9,600 for the damagеs. Even the prosecutor conceded that,the amount of damage done was unsettled and needed clarification. The order of probation states that restitution shall be made in the amount of $10,278. However, this amount is not supported by the testimony at the sentencing proceeding, nor is there support for that amоunt in the presentence report because the report did not contemplate restitution.
The sentencing court also failed to establish whether defеndant had the ability to pay the amount of restitution ordered. In
People v Music,
Mr. Spiers: Your Honor, when I look at this, I look at what is a $10,000 bill going to do to Mr. Orweller versus what $10,000 is going to do to the insurance company.
We conclude that this statement was an assertion that defendant would have difficulty paying restitution.
The only testimony on the record with regard to defendant’s ability to pay cаme from the prosecutor, who stated that defendant earned $15,000 in 1990. The presentence report indicates that defendant was self-employed and earned only $7,000 in 1988 and 1989. There was no inquiry on the record with respect to other obligations defendant may have. On remand, the court shall inquire into defendant’s ability to pay and make findings with respect to this requirement on the record.
Defendant argues that there was no support for the court’s conclusion that the damage to the building was proximately caused by his criminal conduct. We disagree. Defendant admitted that he was intoxicated and that, as a result of his intoxication, he drove into the building. Hоwever, on remand, the court must limit its order of restitution to an amount that is easily ascertained without considering principles of civil liability such as negligence. See Tyler, supra at 89.
Affirmed in part, reversed in part, and remanded for resentencing consistent with this opinion. We do not retain jurisdiction.