November 6, 2014, Introduced by Rep. Haveman and referred to the Committee on Appropriations.
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:
CHAPTER XI
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 may
not exceed 2 years. Except as
provided in section 2a of this chapter, if the defendant is
convicted
of a felony, the probation period shall may not exceed 5
years.the 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.
(2)
The court shall, by order
, to be filed or entered in the
cause
case as the court may direct directs by
general rule or in
each case, fix and determine the period and conditions of
probation.
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 may
not be reduced other than by a
revocation that results in imprisonment or as otherwise provided by
law.
(4) If an individual is placed on probation for a listed
offense
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
granting
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
to
protect the public safety. If during the
a probation period the
sentencing
court determines is
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
probation
condition, 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
the
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
the
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.
(d) If a the court determines that the probationer has
committed or attempted a third risk violation or a major risk
violation,
the court may revoke the probation
order 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 must be credited toward the sentence imposed, and if the
probationer is on probation for multiple judgments, the credit must
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
sanction.
(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
a
felony, or a person who is a licensee or registrant
under article
15 of the public health code, 1978 PA 368, MCL 333.16101 to
333.18838,
as described in section 1(14) of chapter IX, and, or, if
directed
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
subsection
(1) shall must not include any address or telephone
number for the home, workplace, school, or place of worship of any
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
must 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 must 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.
(b) If requested by a victim, any 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.
(c)
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
range.
(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
must be specifically noted in the presentence
investigation
report.
(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
must be made a part of the record, the presentence
investigation
report shall must be amended, and the inaccurate or
irrelevant
information shall must 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 must 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 must 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 must 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 must
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 must
be filed with the
department of corrections.
(b)
The person shall must 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 must contain a request that the person obtain and
provide those documents to the department of corrections. The
notification
also shall must 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 must
accompany the
commitment papers.
(10) A prisoner under the jurisdiction of the department of
corrections
shall must 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.
CHAPTER XIA
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.
(b) (a)
"Circuit of the circuit court" includes a unified
trial
court 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
issued.
(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.
(g) (b)
"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
protective order.
(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
violation.
Sec. 3. It is the intent of the legislature to
create a
voluntary
state program to fund swift and
sure probation
supervision
at the local level based upon on the immediate
detection
of probation violations and the prompt the imposition of
sanctions and remedies to address those violations. In furtherance
of
this intent, the state swift and sure sanctions program is
created
with the following objectives:must
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
shall
must be treated uniformly throughout the this state.
Sec.
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:
(a)
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
the court.
(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
remedies
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
facility
authorized
by law to hold probation violators.
(ii) Extension of the period of supervision within the
period
provided
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
mental
health
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
participation.
(b) Require courts and offenders to enter into written
participation agreements.
(c) Create recommended and mandatory sanctions and remedies
for use by participating courts.
(d) Establish criteria for deviating from recommended and
mandatory
sanctions and remedies when if
necessary to address
special circumstances.
(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).