PEOPLE OF MI V SLOBODAN BOBBY DIMOSKIAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
December 17, 2009
Macomb Circuit Court
LC No. 04-004347-FH
SLOBODAN BOBBY DIMOSKI,
Advance Sheets Version
Before: DONOFRIO, P.J., AND SAWYER AND OWENS, JJ.
The prosecution appeals by delayed leave granted an opinion and order reducing the
amount of defendant’s court-ordered restitution of $120,000 by the amount of a civil judgment
for $104,224.31 that the victim obtained against defendant. We reverse and remand.
Defendant was charged with fraudulent use of funds provided under a building contract,
MCL 570.152, and larceny by conversion of property valued at $20,000 or more, MCL 750.362.
Pursuant to a plea agreement reached in March 2005, defendant pleaded guilty to the former
charge, and the plea was taken under advisement for 11 months pursuant to MCL 771.1.
Defendant was required to make monthly payments on the complainant’s mortgage. If he
complied, the plea would be vacated and he would be allowed to plead guilty to larceny by
conversion of property valued at $200 or more but less than $1,000. However, defendant did not
comply, and in September 2007, the trial court set aside the original plea.
On September 14, 2007, defendant pleaded guilty of fraudulent use of funds provided
under a building contract, MCL 570.152, and was sentenced to three years’ probation. The trial
court referred the issue of restitution to a dispute resolution center. The victim, Zora Radosavac,
and defendant agreed that defendant would pay restitution of $120,000, with a payment plan to
be determined by the trial court. The mediation agreement was “incorporated as Restitution
Defendant later moved to reduce the amount of his restitution. In defendant’s brief in the
trial court, he argued that the amount of restitution should be reduced by $104,224.31, the
amount of a civil judgment that the complainant had obtained against him, and further reduced
by the amounts of other payments he had made that are not pertinent to this appeal, leaving a
balance of $2,775.69. He argued that failure to reduce the restitution order would result in a
windfall for the complainant.
The prosecution disagreed with defendant’s request for credit for the civil judgment and
argued that the law established the victim’s right to restitution. According to the prosecution, a
civil judgment should not be construed as a waiver of the mandated right to restitution.
The trial court agreed with defendant and granted his motion to reduce the amount of his
restitution because, it concluded, the “directive [in MCL 780.766(8)] is clear.”
II. STANDARD OF REVIEW
This Court generally reviews an order of restitution for an abuse of discretion. People v
Cross, 281 Mich App 737, 739; 760 NW2d 314 (2008); In re McEvoy, 267 Mich App 55, 59;
704 NW2d 78 (2005). But when the question of restitution involves a matter of statutory
interpretation, the issue is reviewed de novo as a question of law. Cross, 281 Mich App at 739;
In re McEvoy, 267 Mich App at 59.
The prosecution argues that the trial court erred in reducing the amount of restitution
defendant was ordered to pay by the amount of a civil judgment that the complainant had
obtained against defendant. We agree. This issue is one of first impression.
The trial court relied on MCL 780.766(2), (8), (9), and (13), which provide:
(2) Except as provided in subsection (8), when sentencing a defendant
convicted of a crime, the court shall order, in addition to or in lieu of any other
penalty authorized by law or in addition to any other penalty required by law, that
the defendant make full restitution to any victim of the defendant’s course of
conduct that gives rise to the conviction or to the victim’s estate. . . .
(8) The court shall order restitution to the crime victim services
commission or to any individuals, partnerships, corporations, associations,
governmental entities, or other legal entities that have compensated the victim or
the victim’s estate for a loss incurred by the victim to the extent of the
compensation paid for that loss. The court shall also order restitution for the costs
of services provided to persons or entities that have provided services to the
victim as a result of the crime. Services that are subject to restitution under this
subsection include, but are not limited to, shelter, food, clothing, and
transportation. However, an order of restitution shall require that all restitution to
a victim or victim’s estate under the order be made before any restitution to any
other person or entity under that order is made. The court shall not order
restitution to be paid to a victim or victim’s estate if the victim or victim’s estate
has received or is to receive compensation for that loss, and the court shall state
on the record with specificity the reasons for its action.
(9) Any amount paid to a victim or victim’s estate under an order of
restitution shall be set off against any amount later recovered as compensatory
damages by the victim or the victim’s estate in any federal or state civil
proceeding and shall reduce the amount payable to a victim or a victim’s estate by
an award from the crime victim services commission made after an order of
restitution under this section.
(13) An order of restitution entered under this section remains effective
until it is satisfied in full. An order of restitution is a judgment and lien against all
property of the defendant for the amount specified in the order of restitution. The
lien may be recorded as provided by law. An order of restitution may be enforced
by the prosecuting attorney, a victim, a victim’s estate, or any other person or
entity named in the order to receive the restitution in the same manner as a
judgment in a civil action or a lien. [Emphasis added.]
The trial court focused on the emphasized portion of subsection (8), although it
mistakenly attributed the quotation to subsection (9). The court stated:
Under these circumstances, the Court is guided by the instruction of (8),
(9), and (13) relative to the amount to be received under the civil judgment.
Insofar as the prior judgment was entered by a colleague of this Court, it strikes
the Court as entirely duplicative to, in effect, compensate the victim twice for the
harm inflicted, Bell notwithstanding. As emphasized above, the court “shall not
order restitution to be paid to a victim . . . if the victim . . . has received or is to
receive compensation for that loss.” MCL 780.766(9) [sic]. Hence, the
directive is clear. The prosecutor does agree, and the Court hereby orders, that
the $120,000.00 amount should also be reduced by three $1,000.00 mortgage
payments that defendant made on the victim’s behalf, as well as by $10,000 he
already paid to the victim. Accordingly, the amount of restitution shall be offset
by the amount to the prior judgment entered ($104,224.31) . . . .
In In re McEvoy, 267 Mich App at 66-67, this Court recognized the distinction between
the statutory schemes for restitution and civil damages. A minor admitted several charges
against him for vandalizing a school. The trial court ordered his parents to pay restitution to the
insurer that paid for the damage. On appeal, the parents argued in part that the parental liability
statute, MCL 600.2913, which limited their liability in a civil action to $2,500, should apply to
their liability for the restitution ordered under the juvenile code, MCL 712A.1 et seq.2 This
People v Bell, 276 Mich App 342; 741 NW2d 57 (2007).
The statutory scheme for restitution in the juvenile code is the same as that in the Crime
Victim’s Rights Act. In re McEvoy, 267 Mich App at 63.
Court disagreed and explained that the setoff provisions in MCL 780.794(9) and MCL
712A.30(9), which are the same as that in MCL 780.766(9),
clearly recognize that the statutory scheme for restitution is separate and
independent of any damages that may be sought in a civil proceeding. This Court
has repeatedly recognized that restitution is not a substitute for civil damages.
People v Orweller, 197 Mich App 136, 140; 494 NW2d 753 (1992); People v
Tyler, 188 Mich App 83, 89; 468 NW2d 537 (1991). Accordingly, we conclude
that the juvenile code does not limit the amount of restitution for which a
supervisory parent may be held liable. [In re McEvoy, 267 Mich App at 67.]
Although the issue in that case was different than the issue before the Court in this matter, the
recognition of the distinction between the statutory schemes for restitution and damages sought
in a civil proceeding is instructive.
Because the trial court’s decision was premised on MCL 780.766(8), we find helpful a
discussion of the purposes of the predecessor of this provision originally enacted in 1985 PA 87,
which was then located at MCL 780.766(10) and provided:
The court shall not order restitution with respect to a loss for which the
victim or victim’s estate has received or is to receive compensation, including
insurance, except that the court may, in the interest of justice, order restitution to
the crime victims compensation board or to any person who has compensated the
victim or victim’s estate for such a loss to the extent that the crime victims
compensation board or the person paid the compensation. An order of restitution
shall require that all restitution to a victim or victim’s estate under the order be
made before any restitution to any other person under that order is made.
In People v Washpun, 175 Mich App 420, 425-426; 438 NW2d 305 (1989), this Court
explained the two purposes of the provision as follows:
Two purposes behind the Legislature’s inclusion of [MCL 780.766(10)]
may be fairly readily discerned. One apparent legislative intent behind subsection
(10) is to avoid ordering restitution which would doubly compensate a victim.
The abhorrence of double compensation is well established in our jurisprudence.
The Legislature wanted to place the financial burden of crime on the criminal,
while fully, but not overly, compensating the victim and reimbursing any third
party, such as an insurer, who compensated the victim on an interim basis. . . .
The second principal effect of subsection (10) would seem to be to prevent
application of the “collateral source doctrine” to crime victims’ restitution
situations. Without such a statutory directive, the victim could recoup damages
from the criminal without regard to previous payment from insurance companies
or other ancillary sources. By enacting subsection (10), the Legislature limits
restitution to those who have losses which are, as of the time restitution is paid,
still out of pocket. [Citations omitted.]
Like the present case, United States v Bramson, unpublished opinion of the United States
Court of Appeals for the Fourth Circuit, decided February 24, 1997 (Docket No. 96-4151); 107
F3d 868 (CA 4, 1997),3 cert den 521 US 1127 (1997), involved the effect of an unpaid civil
judgment on an order of restitution. The defendant was convicted of money laundering and
ordered to make restitution in the amount of $3.6 million. After he was sentenced, the victim
obtained a civil judgment against him for $35.6 million in damages for insurance fraud. The
defendant argued that he was entitled to have the restitution order modified by reducing the
restitution amount by the amount of the unpaid civil judgment in order to comply with 18 USC
3663(e)(1). The court disagreed, stating:
[J]ust because the victims have a valid district court judgment does not
mean that they will receive compensation. The ‘is to receive’ language in 18
U.S.C. § 3663(e)(1) requires actual receipt or certainty regarding receipt. Mere
speculation that a victim will receive compensation is insufficient to require a
modification of a restitution award. [Bramson, unpub op at 4.]
The court noted that the authorities cited by the defendant concerned amounts that were actually
recovered from a civil action, not amounts that may potentially be recovered. “Thus, the civil
judgment alone provides no basis for reduction in the restitution award.” Id. The court also
explained the practical benefit of allowing an order of restitution as a means of recovery in
addition to a civil judgment:
In addition, restitution is appropriate in the instant case despite the civil
order because it is more likely that money will be recovered as a result of the
restitution order. As a practical matter, restitution is much more easily collected
by probation officials than by private citizens with a civil judgment, since
probation officials are in a far better position to monitor the Appellant’s financial
status. [Id. at 5 n 2.]
In light of the recognized distinction between the statutory scheme for restitution and
civil damages, In re McEvoy, 267 Mich App at 67, and the statutory mandate for “full
restitution,” MCL 780.766(2), we hold that the trial court erred in reducing the amount of
restitution by the amount of the unpaid civil judgment. Although the victim will have the benefit
of both a civil judgment and a restitution order to obtain monetary relief from the defendant, the
availability of two methods does not mean that the victim will have a double recovery, but
merely increases the probability that the perpetrator of a crime will be forced to pay for the
The disposition is reflected in a table. The text of the unpublished decision is available on
Westlaw and Lexis.
We reverse the trial court’s order to the extent that it reduced the amount of restitution by
the amount of the unpaid civil judgment and remand for proceedings consistent with this
opinion. We do not retain jurisdiction.
/s/ Pat M. Donofrio
/s/ David H. Sawyer
/s/ Donald S. Owens