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In re White

Court of Appeals of Michigan

November 19, 2019

In re R. E. WHITE, II, Minor.
R. E. WHITE, II, Respondent-Appellant. PEOPLE OF THE STATE OF MICHIGAN, Petitioner-Appellee,

          Oakland Circuit Court Family Division LC No. 2015-836585-DL

          Before: Riordan, P.J., and K. F. Kelly and Cameron, JJ.

          K. F. Kelly.

         Respondent pleaded no contest and was adjudicated responsible for unlawful driving away of an automobile (UDAA), MCL 750.413, and driving while license suspended, MCL 257.904(1). The trial court entered an order of disposition that placed respondent in Children's Village. After a hearing, respondent was ordered to pay a total of $1, 774.25 in restitution. Respondent appeals by leave granted[1] solely challenging the restitution order. We vacate the restitution order and remand for proceedings consistent with this opinion.

         I. BASIC FACTS

         On or about January 4, 2017, respondent stole a 2008 Ford Escape belonging to the victim, Christopher Giarmo, from his residence. The police returned Giarmo's vehicle to him five or six days after the theft. Giarmo kept his vehicle in "pristine" condition. When it was returned to him, the contents of the glove box were strewn about the vehicle, the interior smelled of smoke, the interior was coated in dust because of the police attempt to lift fingerprints, and an extra key fob kept hidden in a false bottom of the vehicle's center console was missing.

         After his vehicle was returned, Giarmo paid $154 to have the vehicle professionally cleaned to remove the smell and the fingerprint dust. Additionally, he expended $98.88 to replace his car keys. This cost included the replacement of the electronic key fob that Giarmo had in his possession as well as the hidden key fob that was taken from the vehicle's center console. These new key fobs were the only keys programmed to electronically lock, unlock, and start Giarmo's vehicle. However, the missing key could still be used to physically lock, unlock, and start his vehicle. In order to prevent an individual from using the missing key to enter, start, and drive the vehicle away, Giarmo obtained an estimate of $1, 521.37 to replace his vehicle's locks and ignition. Giarmo's insurance company refused to reimburse for this replacement because the cylinders were not damaged during the theft. Giarmo testified that he did not feel safe with the original key fob still missing.[2] He opined that he could not securely lock items in his vehicle, and someone could unlock the vehicle and lay in wait to prey upon his wife. Giarmo determined that his vehicle had an estimated value of $5500, but he still owed approximately $6, 000. Because it was not cost effective to replace the vehicle's locks and ignition in light of the balance owed, Giarmo elected to turn his vehicle in to a dealership and lease a new vehicle. At the restitution hearing, the trial judge ordered respondent to pay $1, 774.25 in restitution to Giarmo. This restitution payment included the costs of replacing the key fobs and the professional cleaning that were incurred, but also included the cost of replacing the locks and the ignition that had not been expended. The trial court justified "the additional amount of the $1, 521.37 [in restitution] with regard to the cylinder repair that was incurred in the fashion of having to get a new car."


         "Crime victims have a right to restitution under both the Michigan Constitution and Michigan statutory law." People v Wahmhoff, 319 Mich.App. 264, 269; 900 N.W.2d 364 (2017). "The purpose of restitution is to allow crime victims to recoup losses suffered as a result of criminal conduct." People v Newton, 257 Mich.App. 61, 68; 665 N.W.2d 504 (2003) (internal quotation and citation omitted). Restitution is not designed to provide a windfall for crime victims, but was created to ensure that victims are made whole for their losses to the extent possible. People v Corbin, 312 Mich.App. 352, 370; 880 N.W.2d 2 (2015). The juvenile code, MCL 712A.30 and MCL 712A.31, utilizes the same statutory scheme for restitution that was delineated in the Crime Victim's Rights Act (CVRA), MCL 780.766 and MCL 780.767, and therefore, judicial interpretation of the CVRA may be applied to the corresponding provisions in the juvenile code. In Re McEvoy, 267 Mich.App. 55, 61-63; 704 N.W.2d 78 (2005).

         "An order of restitution is generally reviewed for an abuse of discretion." Id. at 59. Although the trial court's calculation of a restitution amount is reviewed for an abuse of discretion, its factual findings are reviewed for clear error. Corbin, 312 Mich.App. at 361. "An abuse of discretion occurs when the court chooses an outcome that falls outside the range of reasonable and principled outcomes." People v Mahone, 294 Mich.App. 208, 212; 816 N.W.2d 436 (2011). "A trial court also necessarily abuses its discretion when it makes an error of law." People v Al-Shara, 311 Mich.App. 560, 566; 876 N.W.2d 826 (2015). "When the question of restitution involves a matter of statutory interpretation, review de novo applies. Statutory interpretation is a question of law subject to a review de novo." In re McEvoy, 267 Mich.App. at 59. Furthermore, "[i]f the plain and ordinary meaning of the language is clear, judicial construction is normally neither permitted nor necessary. Statutory language should be construed reasonably, keeping in mind the purpose of the act." Id. at 59-60 (citations and quotation marks omitted).

         Under the juvenile code, MCL 712A.30 and MCL 712A.31, trial courts are authorized to order a juvenile to pay restitution. In relevant part, MCL 712A.30 states:

         (3) If a juvenile offense results in damage to or loss or destruction of property of a victim of the juvenile offense, or results in the seizure or impoundment of property of a victim of the juvenile offense, the order of restitution may require that the juvenile do 1 or more of the following, as applicable:

         (a)Return the property to the owner of the property or to a person designated by the owner.

(b) If return of the property under subdivision (a) is impossible, impractical, or inadequate, pay an amount equal to the greater of subparagraph (i) or (ii), less the value, determined as of the date the property is returned, of ...

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