PEOPLE
v.
GLEASON
Docket No. 76766.
Michigan Court of Appeals.
Decided September 21, 1984.Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, H. Kevin Drake, Prosecuting Attorney, and Michael A. Nickerson, Assistant Attorney General, for plaintiff.
State Appellate Defender (by Sheila N. Robertson), for defendant on appeal.
Before: R.M. MAHER, P.J., and BRONSON and G.R. McDONALD,[*] JJ.
PER CURIAM.
The defendant appeals as of right a plea-based conviction of larceny in a building.
Defendant, William Kent Gleason, pled guilty to larceny in a building, pursuant to a plea agreement, on November 7, 1983. The arrest warrant was issued in Newaygo County on March 4, 1983, *447 but was not executed by his arrest until June 25, 1983. Subsequent to the warrant's issuance, but prior to its execution, defendant was arrested, convicted and sentenced in Oceana County on an unrelated crime before the same court and judge. Upon serving 96 days on the unrelated crime, defendant was eligible for release, at which time defendant was arrested on the outstanding warrant for the larceny charge in the instant matter. On December 12, 1983, defendant was sentenced to two years probation with the first year to be served in the county jail. Defendant was given credit for three days which he had served following his arrest in the Newaygo County charge.
Defendant claims the trial court erred in not giving him credit for the 96 days served on the unrelated crime. Under the facts of this case defendant's position is correct.
Subsequent to the filing of a complaint, both a police department and the prosecutor's office are charged with the affirmative duty to pursue the case with "due diligence". Lack of diligence by either department constitutes an "administrative delay", which may not prejudice the defendant's statutory right to credit for time served. People v Coyle, 104 Mich. App. 636; 305 NW2d 275 (1981); People v Parshay, 104 Mich. App. 411; 304 NW2d 593 (1981). The police department holding the outstanding warrant in Newaygo County reasonably should have known that defendant was interned in Oceana County jail. Accordingly, under the facts presented in this case, defendant is hereby credited with an additional 96 days served.
Defendant also claims that the provisions of his order of probation requiring him to pay restitution in the amount of $1,485.64 must be vacated because the trial court failed to comply with the requirements of MCL 771.3(5)(a); MSA *448 28.1133(5)(a). The prosecution agrees that the court failed to comply with the requirements of MCL 771.3(5)(a); MSA 28.1133(5)(a). The prosecution agrees that the court did not comply with the statute, but argues that the statute provides a remedy by which defendant may petition the sentencing court for a remission of the payment of restitution. We find that the restitution provision must be vacated because the sentencing court failed to establish on the record any basis for a conclusion that defendant was or would be able to pay the restitution during the term of probation. Such a finding is mandated by the statute. We also find that the remedy relied upon by the prosecution applies only to restitution which has been validly assessed. We therefore vacate this portion of the probation order and remand this cause to the sentencing court to permit the court to comply with the requirements of MCL 771.3(5)(a); MSA 28.1133(5)(a).
Remanded for proceedings consistent with this opinion.
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment.