Bill Text: MI HB5190 | 2013-2014 | 97th Legislature | Introduced

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Bill Title: Criminal procedure; habitual offenders; use of certain prior juvenile offenses for purposes of determining status as habitual offender; allow. Amends secs. 10, 11, 12 & 13, ch. IX of 1927 PA 175 (MCL 769.10 et seq.).

Spectrum: Partisan Bill (Republican 8-0)

Status: (Introduced - Dead) 2013-12-12 - Printed Bill Filed 12/11/2013 [HB5190 Detail]

Download: Michigan-2013-HB5190-Introduced.html

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HOUSE BILL No. 5190

 

December 11, 2013, Introduced by Reps. Lauwers, Daley, Rogers, LaFontaine, Hooker, Graves, Johnson and Heise and referred to the Committee on Judiciary.

 

     A bill to amend 1927 PA 175, entitled

 

"The code of criminal procedure,"

 

by amending sections 10, 11, 12, and 13 of chapter IX (MCL 769.10,

 

769.11, 769.12, and 769.13), sections 10, 11, and 13 as amended by

 

2006 PA 655 and section 12 as amended by 2012 PA 319.

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

CHAPTER IX

 

     Sec. 10. (1) If a person has been convicted of a felony or an

 

attempt to commit a felony, whether the conviction occurred in this

 

state or would have been for a felony or attempt to commit a felony

 

in this state if obtained in this state, and that person commits a

 

subsequent felony within this state, the person shall be punished

 

upon conviction of the subsequent felony and sentencing under

 

section 13 of this chapter as follows:

 

     (a) If the subsequent felony is punishable upon a first

 

conviction by imprisonment for a term less than life, the court,

 

except as otherwise provided in this section or section 1 of

 

chapter XI, may place the person on probation or sentence the

 

person to imprisonment for a maximum term that is not more than 1-

 

1/2 times the longest term prescribed for a first conviction of

 

that offense or for a lesser term.

 

     (b) If the subsequent felony is punishable upon a first

 

conviction by imprisonment for life, the court, except as otherwise

 

provided in this section or section 1 of chapter XI, may place the

 

person on probation or sentence the person to imprisonment for life

 

or for a lesser term.

 

     (c) If the subsequent felony is a major controlled substance

 

offense, the person shall be punished as provided by part 74 of the

 

public health code, 1978 PA 368, MCL 333.7401 to 333.7461.

 

     (2) If the court pursuant to this section imposes a sentence

 

of imprisonment for any term of years under this section, the court

 

shall fix the length of both the minimum and maximum sentence

 

within any specified limits in terms of years or a fraction of a

 

year and the sentence so imposed shall be considered an

 

indeterminate sentence. The court shall not fix a maximum sentence

 

that is less than the maximum term for a first conviction.

 

     (3) A conviction shall not be used to enhance a sentence under

 

this section if that conviction is used to enhance a sentence under

 

a statute that prohibits use of the conviction for further

 

enhancement under this section.

 

     (4) As used in this section, "convicted of a felony or an

 

attempt to commit a felony" includes an adjudication that an

 

individual as a juvenile violated or attempted to violate section

 

520b, 520c, 520d, 520e, or 520g of the Michigan penal code, 1931 PA

 

328, MCL 750.520b, 750.520c, 750.520d, 750.520e, and 750.520g, if

 

the subsequent felony is a violation or attempted violation of

 

section 520b, 520c, 520d, 520e, or 520g of the Michigan penal code,

 

1931 PA 328, MCL 750.520b, 750.520c, 750.520d, 750.520e, and

 

750.520g.

 

     Sec. 11. (1) If a person has been convicted of any combination

 

of 2 or more felonies or attempts to commit felonies, whether the

 

convictions occurred in this state or would have been for felonies

 

or attempts to commit felonies in this state if obtained in this

 

state, and that person commits a subsequent felony within this

 

state, the person shall be punished upon conviction of the

 

subsequent felony and sentencing under section 13 of this chapter

 

as follows:

 

     (a) If the subsequent felony is punishable upon a first

 

conviction by imprisonment for a term less than life, the court,

 

except as otherwise provided in this section or section 1 of

 

chapter XI, may sentence the person to imprisonment for a maximum

 

term that is not more than twice the longest term prescribed by law

 

for a first conviction of that offense or for a lesser term.

 

     (b) If the subsequent felony is punishable upon a first

 

conviction by imprisonment for life, the court, except as otherwise

 

provided in this section or section 1 of chapter XI, may sentence

 

the person to imprisonment for life or for a lesser term.

 

     (c) If the subsequent felony is a major controlled substance

 

offense, the person shall be punished as provided by part 74 of the

 

public health code, 1978 PA 368, MCL 333.7401 to 333.7461.

 

     (2) If the court pursuant to this section imposes a sentence

 

of imprisonment for any term of years under this section, the court

 

shall fix the length of both the minimum and maximum sentence

 

within any specified limits in terms of years or a fraction of a

 

year, and the sentence so imposed shall be considered an

 

indeterminate sentence. The court shall not fix a maximum sentence

 

that is less than the maximum term for a first conviction.

 

     (3) A conviction shall not be used to enhance a sentence under

 

this section if that conviction is used to enhance a sentence under

 

a statute that prohibits use of the conviction for further

 

enhancement under this section.

 

     (4) As used in this section, "convicted of any combination of

 

2 or more felonies or attempts to commit felonies" includes 2 or

 

more adjudications that an individual as a juvenile violated or

 

attempted to violate section 520b, 520c, 520d, 520e, or 520g of the

 

Michigan penal code, 1931 PA 328, MCL 750.520b, 750.520c, 750.520d,

 

750.520e, and 750.520g, if the subsequent felony is a violation or

 

attempted violation of section 520b, 520c, 520d, 520e, or 520g of

 

the Michigan penal code, 1931 PA 328, MCL 750.520b, 750.520c,

 

750.520d, 750.520e, and 750.520g.

 

     Sec. 12. (1) If a person has been convicted of any combination

 

of 3 or more felonies or attempts to commit felonies, whether the

 

convictions occurred in this state or would have been for felonies

 

or attempts to commit felonies in this state if obtained in this

 

state, and that person commits a subsequent felony within this

 

state, the person shall be punished upon conviction of the

 

subsequent felony and sentencing under section 13 of this chapter

 

as follows:

 

     (a) If the subsequent felony is a serious crime or a

 

conspiracy to commit a serious crime, and 1 or more of the prior

 

felony convictions are listed prior felonies, the court shall

 

sentence the person to imprisonment for not less than 25 years. Not

 

more than 1 conviction arising out of the same transaction shall be

 

considered a prior felony conviction for the purposes of this

 

subsection only.

 

     (b) If the subsequent felony is punishable upon a first

 

conviction by imprisonment for a maximum term of 5 years or more or

 

for life, the court, except as otherwise provided in this section

 

or section 1 of chapter XI, may sentence the person to imprisonment

 

for life or for a lesser term.

 

     (c) If the subsequent felony is punishable upon a first

 

conviction by imprisonment for a maximum term that is less than 5

 

years, the court, except as otherwise provided in this section or

 

section 1 of chapter XI, may sentence the person to imprisonment

 

for a maximum term of not more than 15 years.

 

     (d) If the subsequent felony is a major controlled substance

 

offense, the person shall be punished as provided by part 74 of the

 

public health code, 1978 PA 368, MCL 333.7401 to 333.7461.

 

     (2) If the court imposes a sentence of imprisonment for any

 

term of years under this section, the court shall fix the length of

 

both the minimum and maximum sentence within any specified limits

 

in terms of years or a fraction of a year, and the sentence so

 

imposed shall be considered an indeterminate sentence. The court

 

shall not fix a maximum sentence that is less than the maximum term

 

for a first conviction.

 

     (3) A conviction shall not be used to enhance a sentence under

 

this section if that conviction is used to enhance a sentence under

 

a statute that prohibits use of the conviction for further

 

enhancement under this section.

 

     (4) An offender sentenced under this section or section 10 or

 

11 of this chapter for an offense other than a major controlled

 

substance offense is not eligible for parole until expiration of

 

the following:

 

     (a) For a prisoner other than a prisoner subject to

 

disciplinary time, the minimum term fixed by the sentencing judge

 

at the time of sentence unless the sentencing judge or a successor

 

gives written approval for parole at an earlier date authorized by

 

law.

 

     (b) For a prisoner subject to disciplinary time, the minimum

 

term fixed by the sentencing judge.

 

     (5) This section and sections 10 and 11 of this chapter are

 

not in derogation of other provisions of law that permit or direct

 

the imposition of a consecutive sentence for a subsequent felony.

 

     (6) As used in this section:

 

     (a) "Convicted of any combination of 3 or more felonies or

 

attempts to commit felonies" includes 3 or more adjudications that

 

an individual as a juvenile violated or attempted to violate

 

section 520b, 520c, 520d, 520e, or 520g of the Michigan penal code,

 

1931 PA 328, MCL 750.520b, 750.520c, 750.520d, 750.520e, and

 

750.520g, if the subsequent felony is a violation or attempted

 

violation of section 520b, 520c, 520d, 520e, or 520g of the

 

Michigan penal code, 1931 PA 328, MCL 750.520b, 750.520c, 750.520d,

 

750.520e, and 750.520g.

 

     (b) (a) "Listed prior felony" means a violation or attempted

 

violation of any of the following:

 

     (i) Section 602a(4) or (5) or 625(4) of the Michigan vehicle

 

code, 1949 PA 300, MCL 257.602a and 257.625.

 

     (ii) Article 7 of the public health code, 1978 PA 368, MCL

 

333.7101 to 333.7545, that is punishable by imprisonment for more

 

than 4 years.

 

     (iii) Section 72, 82, 83, 84, 85, 86, 87, 88, 89, 91, 110a(2) or

 

(3), 136b(2) or (3), 145n(1) or (2), 157b, 197c, 226, 227, 234a,

 

234b, 234c, 317, 321, 329, 349, 349a, 350, 397, 411h(2)(b), 411i,

 

479a(4) or (5), 520b, 520c, 520d, 520g, 529, 529a, or 530 of the

 

Michigan penal code, 1931 PA 328, MCL 750.72, 750.82, 750.83,

 

750.84, 750.85, 750.86, 750.87, 750.88, 750.89, 750.91, 750.110a,

 

750.136b, 750.145n, 750.157b, 750.197c, 750.226, 750.227, 750.234a,

 

750.234b, 750.234c, 750.317, 750.321, 750.329, 750.349, 750.349a,

 

750.350, 750.397, 750.411h, 750.411i, 750.479a, 750.520b, 750.520c,

 

750.520d, 750.520g, 750.529, 750.529a, and 750.530.

 

     (iv) A second or subsequent violation or attempted violation of

 

section 227b of the Michigan penal code, 1931 PA 328, MCL 750.227b.

 

     (v) Section 2a of 1968 PA 302, MCL 752.542a.

 

     (c) (b) "Prisoner subject to disciplinary time" means that

 

term as defined in section 34 of 1893 PA 118, MCL 800.34.

 

     (d) (c) "Serious crime" means an offense against a person in

 

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.

 

     Sec. 13. (1) In a criminal action, the prosecuting attorney

 

may seek to enhance the sentence of the defendant as provided under

 

section 10, 11, or 12 of this chapter, by filing a written notice

 

of his or her intent to do so within 21 days after the defendant's

 

arraignment on the information charging the underlying offense or,

 

if arraignment is waived, within 21 days after the filing of the

 

information charging the underlying offense.

 

     (2) A notice of intent to seek an enhanced sentence filed

 

under subsection (1) shall list the prior conviction or convictions

 

that will or may be relied upon for purposes of sentence

 

enhancement. The notice shall be filed with the court and served

 

upon the defendant or his or her attorney within the time provided

 

in subsection (1). The notice may be personally served upon the

 

defendant or his or her attorney at the arraignment on the

 

information charging the underlying offense, or may be served in

 

the manner provided by law or court rule for service of written

 

pleadings. The prosecuting attorney shall file a written proof of

 

service with the clerk of the court.

 

     (3) The prosecuting attorney may file notice of intent to seek

 

an enhanced sentence after the defendant has been convicted of the

 

underlying offense or a lesser offense, upon his or her plea of

 

guilty or nolo contendere if the defendant pleads guilty or nolo

 

contendere at the arraignment on the information charging the

 

underlying offense, or within the time allowed for filing of the

 

notice under subsection (1).

 

     (4) A defendant who has been given notice that the prosecuting

 

attorney will seek to enhance his or her sentence as provided under

 

section 10, 11, or 12 of this chapter, may challenge the accuracy

 

or constitutional validity of 1 or more of the prior convictions

 

listed in the notice by filing a written motion with the court and

 

by serving a copy of the motion upon the prosecuting attorney in

 

accordance with rules of the supreme court.

 

     (5) The existence of the defendant's prior conviction or

 

convictions shall be determined by the court, without a jury, at

 

sentencing, or at a separate hearing scheduled for that purpose

 

before sentencing. The existence of a prior conviction may be

 

established by any evidence that is relevant for that purpose,

 

including, but not limited to, 1 or more of the following:

 

     (a) A copy of a judgment of conviction.

 

     (b) If the defendant is charged with committing or attempting

 

to commit a violation of section 520b, 520c, 520d, 520e, or 520g of

 

the Michigan penal code, 1931 PA 328, MCL 750.520b, 750.520c,

 

750.520d, 750.520e, and 750.520g, and the defendant is alleged as a

 

juvenile to have previously committed or attempted to commit a

 

violation of section 520b, 520c, 520d, 520e, or 520g of the

 

Michigan penal code, 1931 PA 328, MCL 750.520b, 750.520c, 750.520d,

 

750.520e, and 750.520g, a copy of the juvenile adjudication.

 

     (c) (b) A transcript of a prior trial or juvenile proceeding

 

or a plea-taking or sentencing proceeding.

 

     (d) (c) A copy of a court register of actions.

 

     (e) (d) Information contained in a presentence report.

 

     (f) (e) A statement of the defendant.

 

     (6) The court shall resolve any challenges to the accuracy or

 

constitutional validity of a prior conviction or convictions that

 

have been raised in a motion filed under subsection (4) at

 

sentencing or at a separate hearing scheduled for that purpose

 

before sentencing. The defendant, or his or her attorney, shall be

 

given an opportunity to deny, explain, or refute any evidence or

 

information pertaining to the defendant's prior conviction or

 

convictions before sentence is imposed, and shall be permitted to

 

present relevant evidence for that purpose. The defendant shall

 

bear the burden of establishing a prima facie showing that an

 

alleged prior conviction is inaccurate or constitutionally invalid.

 

If the defendant establishes a prima facie showing that information

 

or evidence concerning an alleged prior conviction is inaccurate,

 

the prosecuting attorney shall bear the burden of proving, by a

 

preponderance of the evidence, that the information or evidence is

 

accurate. If the defendant establishes a prima facie showing that

 

an alleged prior conviction is constitutionally invalid, the

 

prosecuting attorney shall bear the burden of proving, by a

 

preponderance of the evidence, that the prior conviction is

 

constitutionally valid.

 

     (7) As used in this section, "prior conviction or convictions"

 

includes an adjudication that an individual as a juvenile committed

 

or attempted to commit a violation of section 520b, 520c, 520d,

 

520e, or 520g of the Michigan penal code, 1931 PA 328, MCL

 

750.520b, 750.520c, 750.520d, 750.520e, and 750.520g, if the

 

subsequent felony is a violation or attempted violation of section

 

520b, 520c, 520d, 520e, or 520g of the Michigan penal code, 1931 PA

 

328, MCL 750.520b, 750.520c, 750.520d, 750.520e, and 750.520g.