HB-4137, As Passed House, October 1, 2015

 

 

 

 

 

 

 

 

 

 

 

 

SUBSTITUTE FOR

 

HOUSE BILL NO. 4137

 

 

 

 

 

 

 

 

 

 

 

 

     A bill to amend 1927 PA 175, entitled

 

"The code of criminal procedure,"

 

by amending sections 2 and 4 of chapter XI and the chapter heading

 

and sections 3, 4, 5, and 6 of chapter XIA (MCL 771.2, 771.4,

 

771A.3, 771A.4, 771A.5, and 771A.6), section 2 of chapter XI as

 

amended by 2010 PA 351, section 4 of chapter XI as amended by 1998

 

PA 520, and sections 3, 4, 5, and 6 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

 

and section 36 of chapter VIII, 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

 

and section 36 of chapter VIII, if the defendant is convicted of a

 

felony, the probation period shall not exceed 5 years. Except as

 

provided in section 2a of this chapter and section 36 of chapter

 

VIII, after the defendant has completed 1/3 of the original felony

 

probation period of his or her felony probation, the department

 

shall notify the sentencing court. Not less than 10 days before

 

reducing or terminating a period of probation or conducting a

 

review under this section, the court shall notify the prosecuting

 

attorney, the defendant or, if the defendant has an attorney, the

 

defendant's attorney, and the victims, as required under the

 

William Van Regenmorter crime victim's rights act, 1985 PA 87, MCL

 

780.751 to 780.834.

 

     (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 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. It is the intent of the legislature that the granting

 

of probation is a matter of grace conferring no vested right to its

 

continuance. The 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 as

 

needed and available, and to protect the public safety. If during

 

the probation period the sentencing court determines 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 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 on the

 

revocation shall be summary and informal and not subject to the

 

rules of evidence or of pleadings applicable in criminal trials. 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 revocation hearing. The court may investigate and enter a

 

disposition of the probationer as the court determines best serves

 

the public interest. If a probation order is revoked, the court may

 

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. 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.

 

CHAPTER XIA

 

PROBATION SWIFT AND SURE SANCTIONS ACT

 

     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: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.

 

     (d) Continued violations are to be addressed by increasing

 

sanctions and remedies as necessary to achieve results.

 

     (e) To the extent possible and considering local resources,

 

probationers subject to swift and sure probation under this chapter

 

shall be treated uniformly throughout the this state.

 

     Sec. 4. (1) Beginning January 1, 2013, the The swift and sure

 

probation supervision fund is created within the state treasury.

 

The state treasurer may receive money or other assets from any

 

source for deposit into the fund. The state treasurer shall direct

 

the investment of the fund. The state treasurer shall credit to the

 

fund interest and earnings from fund investments. Money in the fund

 

at the close of the fiscal year shall remain in the fund and shall

 

not lapse to the general fund.

 

     (2) The state treasurer shall allocate sufficient funds to

 

allow the state court administrative office shall, to, under the

 

supervision of the supreme court, expend funds from the swift and

 

sure probation supervision fund to administer this chapter and to

 

provide grants under this chapter to fund programs of swift and

 

sure probation supervision in the circuit court that meet the

objectives set forth in section 3 of this chapter and the

 

requirements of section 5 of this chapter.

 

     (3) (2) A court may apply for a grant to fund a program of

 

swift and sure probation supervision under this chapter by filing a

 

written application with the state court administrative office in

 

the manner required by that office. The funding of all grants under

 

this chapter is subject to appropriation.

 

     (4) A court that has received a grant under this chapter to

 

fund programs of swift and sure probation supervision may accept

 

participants from any other jurisdiction in this state based upon

 

either the residence of the participant in the receiving

 

jurisdiction or the unavailability of a swift and sure probation

 

supervision program in the jurisdiction where the participant is

 

charged. The transfer can occur at any time during the proceedings,

 

including, but not limited to, prior to adjudication. The receiving

 

court shall have jurisdiction to impose sentence, including, but

 

not limited to, sanctions, incentives, incarceration, and phase

 

changes. A transfer under this subsection is not valid unless it is

 

agreed to by all of the following:

 

     (a) The defendant or respondent.

 

     (b) The attorney representing the defendant or respondent.

 

     (c) The judge of the transferring court and the prosecutor of

 

the case.

 

     (d) The judge of the receiving court and the prosecutor of the

 

receiving court funding unit.

 

     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:

 

     (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).

 

     Sec. 6. (1) The state court administrative office may, under

 

the supervision of the supreme court, consult with the department

 

of corrections when establishing initial programming and

 

eligibility requirements under this chapter.

 

     (2) An individual is eligible for the swift and sure probation

 

supervision program if 1 of the following applies:

 

     (a) He or she receives a risk score of high on a validated

 

risk assessment.

 

     (b) He or she is a violent offender and receives a risk score

 

other than high on a validated risk assessment and the judge,

 

prosecutor, and defendant agree to the defendant's placement in the

 

program.

     (c) He or she is not a violent offender and receives a risk

 

score other than high or low on the validated risk assessment and

 

the judge, prosecutor, and defendant agree to the defendant's

 

placement in the program.

 

     (3) As used in subsection (2), "violent offender" means an

 

individual who has been convicted of an assaultive crime as that

 

term is defined in section 9a of chapter X.