                          STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     February 23, 2017
               Plaintiff-Appellee,

v                                                                    No. 329177
                                                                     Mecosta Circuit Court
JONATHAN JOSEPH GOOD,                                                LC No. 08-006437-FC

               Defendant-Appellant.


Before: BORRELLO, P.J., and MARKEY and M. J. KELLY, JJ.

BORRELLO, J. (concurring in part and dissenting in part).

        In this matter the majority denied defendant relief for damages arising out of a break-in to
the Ace Gun Shop on the basis that such relief was beyond the scope of the remand order. While
I do not disagree with the basis provided for the decision reached by the majority, because I am
of the opinion that precedent from our Supreme Court clearly states that Ace Gun Shop is not
entitled to restitution, I write separately to provide an alternative basis for relief.

         MCR 7.216(A)(7) empowers this Court to “enter any judgement or order or grant further
relief or different relief as the case may require.” My review of the record submitted in this
matter leads me to conclude that defendant was not charged with breaking and entering into the
Ace Gun Shop, yet he was ordered to pay restitution to Ace Gun Shop for damages incurred as a
result of defendant’s alleged actions. This is contrary to our Supreme Court’s holding in People
v McKinley, 496 Mich 410, 413; 852 NW2d 770 (2014) wherein our Supreme Court stated: “In
this case, we decide whether a trial court’s restitution award that is based solely on uncharged
conduct may be sustained. We conclude that it cannot.” Our Supreme Court defined “uncharged
conduct” as “ . . . criminal conduct that the defendant allegedly engaged in that was not relied on
as a basis for any criminal charge and therefore was not proved beyond a reasonable doubt to a
trier of fact.” 496 Mich at 413 n.1.

        Here, defendant was not charged, much less convicted, of any damage to the Ace Gun
Shop. However, the trial court in this matter ordered defendant to pay restitution for uncharged
conduct. Such a ruling is in direct contravention of our Supreme Court’s ruling in McKinley.
Therefore, I respectfully dissent on this issue and pursuant to McKinley, 496 Mich at 413 and
MCR 7.216(A)(7), I would vacate that portion of the restitution order imposed on defendant
relating to the Ace Gun Shop.


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I concur with the majority in the remainder of their opinion.


                                                     /s/ Stephen L. Borrello




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