February 4, 2015, Introduced by Reps. Howrylak, Heise, Kelly, Forlini, Webber and Pagel and referred to the Committee on Criminal Justice.
A bill to amend 1927 PA 175, entitled
"The code of criminal procedure,"
by amending sections 2, 4, and 14 of chapter XI and sections 2, 3,
and 5 of chapter XIA (MCL 771.2, 771.4, 771.14, 771A.2, 771A.3, and
771A.5), section 2 of chapter XI as amended by 2010 PA 351, section
4 of chapter XI as amended by 1998 PA 520, section 14 of chapter XI
as amended by 2012 PA 27, and sections 2, 3, and 5 of chapter XIA
as added by 2012 PA 616.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 2. (1) Except as provided in section 2a of this chapter,
if the defendant is convicted for an offense that is not a felony,
the probation period shall not exceed 2 years. Except as provided
in section 2a of this chapter, if the defendant is convicted of a
the probation period shall not exceed
following, as applicable:
(a) Five years if the applicable prior record variable score
calculated under part 5 of chapter XVII is 25 or greater or if
subdivision (b) is otherwise inapplicable.
(b) Two years if the applicable prior record variable score
calculated under part 5 of chapter XVII is less than 25 and neither
of the following apply:
(i) The court determines that a period of up to 5 years is
necessary because of victim restitution ordered.
(ii) The conviction is for any of the following:
(A) A felony under chapter LXXVI of the Michigan penal code,
1931 PA 328, MCL 750.520a to 750.520n.
(B) A felony under section 411h, 411i, or 411s of the Michigan
penal code, 1931 PA 328, MCL 750.411h, 750.411i, and 750.411s.
(C) A felony as to which the victim and the defendant had a
relationship described in section 81(2) of the Michigan penal code,
1931 PA 328, MCL 750.81.
The court shall, by order
, to be filed or entered in the
case as the court may direct directs by
general rule or in
each case, fix and determine the period and conditions of
The order is part of the record in the
cause. case. The
court may amend the order in form or substance at any time.
(3) A defendant who was placed on probation under section 1(4)
of this chapter as it existed before March 1, 2003 for an offense
committed before March 1, 2003 is subject to the conditions of
probation specified in section 3 of this chapter, including payment
of a probation supervision fee as prescribed in section 3c of this
chapter, and to revocation for violation of these conditions, but
the probation period shall not be reduced other than by a
revocation that results in imprisonment or as otherwise provided by
(4) If an individual is placed on probation for a listed
enumerated as that term is
defined in section 2 of the sex
offenders registration act, 1994 PA 295, MCL 28.722, the
individual's probation officer shall register the individual or
accept the individual's registration as provided in that act.
(5) Subsection (1) does not apply to a juvenile placed on
probation and committed under section 1(3) or (4) of chapter IX to
an institution or agency described in the youth rehabilitation
services act, 1974 PA 150, MCL 803.301 to 803.309.
Sec. 4. (1) It is the intent of the legislature that the
of probation is a matter of grace conferring no vested right
to its continuance. purposes
of probation are to hold
offenders accountable for making restitution to ensure compliance
with the court's judgment, to effectively rehabilitate offenders by
directing them to specialized treatment or education programs, and
protect the public safety. If during
a probation period the
notified that the probationer is likely
again to engage in an offensive or criminal course of conduct
or that the public good requires revocation of probation, the
court may revoke probation. All probation orders are revocable in
any manner the court that imposed probation considers applicable either
for has committed a violation or attempted violation of a
or for any other type of antisocial conduct or action
on the probationer's part for which the court determines that
revocation is proper in the public interest. Hearings the
court may hold a hearing on sanction or revocation. The hearing on
sanction or revocation
shall be summary and informal and is not
subject to the rules of evidence or of pleadings applicable in
criminal trials, and the court shall conduct the hearing in a
summary and informal manner. In its probation order or by general
rule, the court may provide for the apprehension, detention, and
confinement of a probationer accused of violating a probation
condition or conduct inconsistent with the public good. The method
of hearing and presentation of charges are within the court's
discretion, except that the probationer is entitled to a written
copy of the charges constituting the claim that he or she violated
probation and to a probation sanction or revocation hearing. The
court may investigate and enter a disposition of the probationer as
court determines best serves the public interest,
. subject to
all of the following:
(a) If the court determines that the probationer has committed
or attempted a first noncompliance violation, the court shall
sanction the probationer to 1 or more nonconfinement responses.
(b) If the court determines that the probationer has committed
or attempted a second through fifth noncompliance violation, the
court may sanction the probationer by confinement in the county
jail for up to 3 days.
(c) If the court determines that the probationer has committed
or attempted a risk violation, the court may sanction the
probationer by confinement in the county jail for up to 30 days.
a the court determines that the probationer has
committed or attempted a third risk violation or a major risk
the court may revoke the probation
is revoked, the court
may and sentence the probationer in the same manner and to
the same penalty as the court might have done if the probation
order had never been made. Time spent in confinement under this
section shall be credited toward the sentence imposed, and if the
probationer is on probation for multiple judgments, the credit
shall be applied to each sentence.
(2) This section does not apply to a juvenile placed on
probation and committed under section 1(3) or (4) of chapter IX to
an institution or agency described in the youth rehabilitation
services act, 1974 PA 150, MCL 803.301 to 803.309.
(3) All violations alleged at a single hearing on sanction or
revocation constitute 1 violation for purposes of determining the
(4) As used in this section, "major risk violation",
"noncompliance violation", "nonconfinement violation",
"nonconfinement response", and "risk violation" mean those terms as
defined in section 2 of chapter XIA.
Sec. 14. (1) Before the court sentences a person charged with
or a person who is a licensee or registrant
15 of the public health code, 1978 PA 368, MCL 333.16101 to
as described in section 1(14) of chapter IX,
and, or, if
by the court,
in any other case in which a person is
charged with a misdemeanor within the jurisdiction of the court,
the probation officer shall inquire into the antecedents,
character, and circumstances of the person, and shall report in
writing to the court.
(2) A presentence investigation report prepared under
(1) shall not include
address or telephone number
the home, workplace, school, or place of worship of
victim or witness, or a family member of any victim or witness,
unless an address is used to identify the place of the crime or to
impose conditions of release from custody that are necessary for
the protection of a named individual. Upon request, any other
address or telephone number that would reveal the location of a
victim or witness or a family member of a victim or witness shall
be exempted from disclosure unless an address is used to identify
the place of the crime or to impose conditions of release from
custody that are necessary for the protection of a named
individual. A presentence investigation report prepared under
subsection (1) shall include all of the following:
(a) An evaluation of and a prognosis for the person's
adjustment in the community based on factual information contained
in the report.
If requested by a victim,
written impact statement
submitted by the victim under the William Van Regenmorter crime
victim's rights act, 1985 PA 87, MCL 780.751 to 780.834.
A specific written recommendation for
disposition based on the
evaluation and other information as prescribed by the assistant director
of the department of corrections in charge of probation.a
term and the appropriate conditions of probation supervision
following jail confinement, if applicable, or the appropriate
conditions of probation supervision, if probation is granted.
(d) A statement prepared by the prosecuting attorney as to
whether consecutive sentencing is required or authorized by law.
(e) For a person to be sentenced under the sentencing
guidelines set forth in chapter XVII, all of the following:
(i) For each conviction for which a consecutive sentence is
authorized or required, the sentence grid in part 6 of chapter XVII
that contains the recommended minimum sentence range.
(ii) Unless otherwise provided in subparagraph (i), for each
crime having the highest crime class, the sentence grid in part 6
of chapter XVII that contains the recommended minimum sentence
(iii) Unless otherwise provided in subparagraph (i), the
computation that determines the recommended minimum sentence range
for the crime having the highest crime class.
(iv) A specific statement as to the applicability of
intermediate sanctions, as defined in section 31 of chapter IX.
( v ) The recommended sentence.
(f) If a person is to be sentenced for a felony or for a
misdemeanor involving the illegal delivery, possession, or use of
alcohol or a controlled substance, a statement that the person is
licensed or registered under article 15 of the public health code,
1978 PA 368, MCL 333.16101 to 333.18838, if applicable.
(g) Diagnostic opinions that are available and not exempted
from disclosure under subsection (3).
(h) A statement as to whether the person has provided the
identification documents referenced in subsection (9)(b).
(3) The court may exempt from disclosure in the presentence
investigation report information or a diagnostic opinion that might
seriously disrupt a program of rehabilitation or sources of
information obtained on a promise of confidentiality. If a part of
the presentence investigation report is not disclosed, the court
shall state on the record the reasons for its action and inform the
defendant and his or her attorney that information has not been
disclosed. The action of the court in exempting information from
disclosure is subject to appellate review. Information or a
diagnostic opinion exempted from disclosure under this subsection
shall be specifically noted in the presentence investigation
(4) If a prepared presentence investigation report is amended
or altered before sentencing by the supervisor of the probation
officer who prepared the report or by any other person who has the
authority to amend or alter a presentence investigation report, the
probation officer may request that the court strike his or her name
from the report and the court shall comply with that request.
(5) The court shall permit the prosecutor, the defendant's
attorney, and the defendant to review the presentence investigation
report before sentencing.
(6) At the time of sentencing, either party may challenge, on
the record, the accuracy or relevancy of any information contained
in the presentence investigation report. The court may order an
adjournment to permit the parties to prepare a challenge or a
response to a challenge. If the court finds on the record that the
challenged information is inaccurate or irrelevant, that finding
shall be made a part of the record, the presentence investigation
report shall be amended, and the inaccurate or irrelevant
information shall be stricken accordingly before the report is
transmitted to the department of corrections.
(7) A copy of the report described under subsection (5) and
the amended report described under subsection (6) shall be provided
to the prosecutor and the defendant's attorney or the defendant if
he or she is not represented by an attorney. The copy of the report
described under subsection (5) shall be provided not less than 2
business days before sentencing unless that period is waived by the
defendant. The prosecutor and the defendant's attorney or the
defendant if he or she is not represented by an attorney have the
right to retain a copy of the report and the amended report
provided under this subsection.
(8) On appeal, the defendant's attorney, or the defendant if
proceeding pro se, shall be provided with a copy of the presentence
investigation report and any attachments to the report with the
exception of any information exempted from disclosure by the court
under subsection (3).
(9) If the person is committed to a state correctional
facility, both of the following apply:
(a) A copy or amended copy of the presentence investigation
report and, if a psychiatric examination of the person has been
made for the court, a copy of the psychiatric report shall
accompany the commitment papers. If the person is sentenced by fine
or imprisonment or placed on probation or other disposition of his
or her case is made by the court, a copy or amended copy of the
presentence investigation report, including a psychiatric
examination report made in the case, shall be filed with the
department of corrections.
(b) The person shall be provided notification that provides an
explanation of the importance of obtaining an operator's license or
state personal identification card upon release from incarceration
and lists the personal identification documents described in
section 34c of the corrections code of 1953, 1953 PA 232, MCL
791.234c, necessary for obtaining an operator's license or state
personal identification card. The notification also shall contain a
request that the person obtain and provide those documents to the
department of corrections. The notification also shall state that
the department of corrections will retain in the file maintained
for the person any identification documents provided by the person
until he or she is released from secure confinement. Any
identification documents previously provided by the person shall
accompany the commitment papers.
(10) A prisoner under the jurisdiction of the department of
corrections shall be provided with a copy of any presentence
investigation report in the department's possession about that
prisoner, except for information exempted from disclosure under
subsection (3), not less than 30 days before a parole interview is
conducted under section 35 of the corrections code of 1953, 1953 PA
232, MCL 791.235.
Sec. 2. As used in this chapter:
(a) "Absconding from supervision" means being apprehended by a
law enforcement or probation officer, or being arrested for a new
crime outside of this state.
"Circuit of the circuit court" includes a unified
having that has jurisdiction over probationers.
(c) "Failure to report" means failure to report to the
probation officer when required and to turn himself or herself in
within 7 days after a warrant for his or her apprehension has been
(d) "Major risk violation" means either of the following:
(i) The violation of a protective order.
(ii) An offense against a person that is a violation of section
83, 84, 86, 88, 89, 317, 321, 349, 349a, 350, 397, 520b, 520c,
520d, 520g(1), 529, or 529a of the Michigan penal code, 1931 PA
328, MCL 750.83, 750.84, 750.86, 750.88, 750.89, 750.317, 750.321,
750.349, 750.349a, 750.350, 750.397, 750.520b, 750.520c, 750.520d,
750.520g, 750.529, and 750.529a.
(e) "Noncompliance violation" means a failure to report or
other violation of a condition of supervision that is not a risk
violation or a major risk violation.
(f) "Nonconfinement response" means a violation response that
does not result in imprisonment in the custody of the department or
the county jail, including any of the following:
(i) Extension of the period of supervision within the period
provided by law.
(ii) Additional reporting and compliance requirements.
(iii) Testing for the use of drugs or alcohol.
(iv) Counseling or treatment for behavioral health problems,
including for substance use.
"Probationer" means an
individual placed on probation
for committing a felony.
(h) "Risk violation" means a violation of a condition of
supervision that is any of the following:
(i) Contact with a specifically prohibited person, or proximity
to a specifically prohibited business or location.
(ii) An arrest for domestic violence or other threatening,
stalking, or assaultive behavior that is not a violation of a
(iii) An arrest for an unadjudicated new felony that is not a
major risk violation.
(iv) Absconding from supervision.
(v) The probationer's sixth or subsequent noncompliance
Sec. 3. It is the intent of the legislature
create a voluntary
state program to fund swift and
at the local level based upon on the immediate
of probation violations and the prompt
the imposition of
sanctions and remedies to address those violations. In furtherance
this intent, the state swift and sure sanctions program
with the following objectives:shall
be implemented and
maintained as provided in this chapter as follows:
(a) Probationers are to be sentenced with prescribed terms of
probation meeting the objectives of this chapter. Probationers are
to be aware of their probation terms as well as the consequences
for violating the terms of their probation.
(b) Probationers are to be closely monitored and every
detected violation is to be promptly addressed by the court.
(c) Probationers are to be arrested as soon as a violation has
been detected and are to be promptly taken before a judge for a
hearing on the violation unless the violation is a noncompliance
violation and the probationer waives a hearing after being
presented with a violation report.
(d) Continued violations are to be addressed by increasing
sanctions and remedies as necessary to achieve results. At a
minimum, probationers may be confined for the period designated in
the violation report, up to 3 days, on the execution by the
probationer of a waiver of rights.
(e) To the extent possible and considering local resources,
probationers subject to swift and sure probation under this chapter
be treated uniformly throughout
the this state.
5. (1) A
program of swift and sure probation supervision funded
under section 4 judge shall do all of the following if swift
and sure probation applies to a probationer:
Require the court to inform Inform
the probationer in
person of the requirements of his or her probation and the
sanctions and remedies that may apply to probation violations.
(b) Require the probationer to initially meet in person with a
probation agent or probation officer and as otherwise required by
(c) Provide for an appearance before the judge or another
judge for any probation violation as soon as possible but within 72
hours after the violation is reported to the court unless the
probationer waives a hearing or a departure from the 72-hour
requirement is authorized for good cause as determined by criteria
established by the state court administrative office.
(d) Provide for the immediate imposition of sanctions and
approved by the state court administrative office to effectively
address probation violations. The sanctions and remedies
approved under this subdivision may include, but need not be
limited to, 1 or more of the following:as provided in section
4(1) of chapter XI.
( i ) Temporary incarceration in a jail or other
by law to hold probation violators. ( ii ) Extension of the period of supervision within the
by law. ( iii ) Additional reporting and compliance requirements. ( iv ) Testing for the use of drugs and alcohol. ( v ) Counseling and treatment for emotional or other
problems, including for substance abuse. ( vi ) Probation revocation.
(2) The state court administrative office may, under the
supervision of the supreme court, do any of the following regarding
programs funded under this chapter:
(a) Establish general eligibility requirements for offender
(b) Require courts and offenders to enter into written
(c) Create recommended and mandatory sanctions and remedies
for use by participating courts.
(d) Establish criteria for deviating from recommended and
sanctions and remedies
necessary to address
(e) Establish a system for determining sanctions and remedies
that should or may be imposed under subdivision (c) and for
alternative sanctions and remedies under subdivision (d).