People v. Collins, 607 N.W.2d 760 (Mich. Ct. App. 1999)

Cases | People v. Collins, 607 N.W.2d 760 (Mich. Ct. App. 1999) | 2018

The defendant was convicted of two counts of embezzlement of property belonging to oneself and another and one count of larceny over $100. The sentence provided for suspension of 270 days of the jail time if the defendant paid $31,505.50 in restitution. The trial court found that Mich. Comp. Laws Ann. § 769.1a (14), which provides that a defendant may not be incarcerated for failing to pay restitution unless the trial court finds that the defendant was able to pay and willfully defaulted on the obligation, did not apply to the defendant. On appeal, the defendant claimed that the order violated the restitution statute and the Equal Protection Clauses of the state and federal constitutions because it punished him for failing to pay restitution without factual findings that he was able to pay and in willful default of the order. The appellate court found that the trial court erred in deciding that § 769.1a (14) did not apply, and remanded to trial court to make appropriate findings of fact under the statute and to decide whether the defendant could be required to serve the extra 270 days of jail time for failure to pay. The defendant could not be required to served the “suspended” portion of the jail sentence absent a finding that he had the ability to pay and was in willful default.