PEOPLE
v.
HOFFER
Docket Nos. 127279, 135909.
Michigan Court of Appeals.
Decided April 20, 1992, at 9:00 A.M.Frank J. Kelley, Attorney General, Gay Secor Hardy, Solicitor General, William D. Frey, Prosecuting Attorney, and Lawrence J. Van Wasshenova, *625 Assistant Prosecuting Attorney, for the people.
Luther W. Glenn, Jr., for the defendant.
Before: WEAVER, P.J., and MICHAEL J. KELLY and MARILYN KELLY, JJ.
MICHAEL J. KELLY, J.
Defendant pleaded guilty in the Monroe Circuit Court of breaking and entering a motor vehicle with intent to steal property with a value in excess of $5, MCL 750.356a; MSA 28.588(1). On January 10, 1986, defendant was sentenced to five years' probation. On February 28, 1990, defendant pleaded guilty of violating several of the terms of his probation. Subsequently, the trial court acceded to defendant's request that he be enrolled in the special alternative to incarceration program. Then, on June 25, 1990, defendant again pleaded guilty of violating his probation. Defendant requested that sentencing for this violation be deferred until December 7, 1990. On that date, defendant was sentenced to forty to sixty' months imprisonment. Defendant appeals as of right.
Defendant first argues that the trial court abused its discretion under People v Milbourn, 435 Mich. 630; 461 NW2d 1 (1990), by imposing a sentence of forty to sixty months' imprisonment. Defendant claims his sentence violates the principle of proportionality.
Although the sentencing guidelines do not apply to a defendant convicted of probation violation, People v Leske, 187 Mich. App. 153, 158; 466 NW2d 361 (1991), the forty- to sixty-month sentence imposed in this matter greatly exceeded the guidelines' recommendation for the underlying breaking and entering conviction and, although defendant *626 was sentenced following release of the Milbourn decision, we are not certain that the trial court had the opportunity to apply the Milbourn principles in this case. There was no mention of that case or of the principle of proportionality. Because the departure in this case was so great, and because we believe that the trial court should apply the principles set forth in Milbourn in the first instance and determine whether the sentence is proportional, we remand this matter for resentencing under Milbourn. For these reasons, we need not and do not reach defendant's claim of abuse of discretion.
Defendant next argues that the court erred in revoking his probation for failure to pay restitution when the reason for nonpayment was his indigence, citing People v Terminelli, 68 Mich. App. 635; 243 NW2d 703 (1976); People v Lemon, 80 Mich. App. 737; 265 NW2d 31 (1978). Defendant's argument is based on a mischaracterization of the record. The December 7, 1990, sentencing was based on the June 25, 1990, finding that defendant had violated his probation by failing to complete the special alternative to incarceration program.
Defendant's conviction is affirmed, his sentence is vacated, and the case is remanded for resentencing. We do not retain jurisdiction.
MARILYN KELLY, J., concurred.
WEAVER, P.J. (concurring in part and dissenting in part).
While I concur in the affirmance of defendant's conviction, I dissent in part because I would not remand for resentencing.
The record shows that defendant was repeatedly given opportunities to comply with the lesser punishments imposed, but failed to do so. He twice *627 pleaded guilty of probation violation. A sentence constitutes an abuse of discretion if it violates the principle of proportionality. People v Milbourn, 435 Mich. 630; 461 NW2d 1 (1990). After a thorough review of the record, I conclude the sentence imposed is proportionate to the seriousness of the circumstances surrounding this offense and this offender. I would find no abuse of the sentencing court's discretion.