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STATE OF MICHIGAN
COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v GEORGE BURGESS, Defendant-Appellant.

UNPUBLISHED May 13, 1997

No. 192447 St. Clair Circuit Court LC No. 88-834

Before: Corrigan, C.J., and Young and M.J. Talbot*, JJ. MEMORANDUM. By leave granted, defendant challenges denial of his motion to dismiss probation violation charges, which the record shows the prosecution pursued dilatorily, causing a delay of 29 months between issuance of the bench warrant authorizing defendant's arrest for probation violation and effectuation of the arrest. At the hearing on this the motion in the circuit court, the prosecutor expressly disclaimed any intent to seek to incarcerate defendant as a probation violator; the prosecutor proclaims an intent only to enforce the restitutionary conditions of the order of probation. This case is being decided without oral argument pursuant to MCR 7.214(E). While it is true that probation violation charges which could expose the defendant to the statutorily authorized punishment for the underlying offense must be pursued with due diligence, which was admittedly not exercised here, failing which such violation charges must be considered waived, People v Ortman, 209 Mich App 251, 254; 530 NW2d 161 (1995) and cases there cited, such principles have no application to restitutionary conditions, which, while they may provide grounds for finding a violation of probation, also represent civil obligations which may be enforced by civil means. RJA

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