Bill Text: MI HB5805 | 2019-2020 | 100th Legislature | Introduced
Bill Title: Courts; judges; hearings on emergency motions by defendant in criminal cases; provide for. Amends sec. 1, ch. I of 1927 PA 175 (MCL 761.1) & adds sec. 12 to ch. III.
Spectrum: Bipartisan Bill
Status: (Introduced - Dead) 2020-05-21 - Bill Electronically Reproduced 05/20/2020 [HB5805 Detail]
Download: Michigan-2019-HB5805-Introduced.html
HOUSE BILL NO. 5805
May 20, 2020, Introduced by Reps. Berman,
Wozniak, Yaroch, Elder and Warren and referred to the Committee on
Judiciary.
A bill to amend 1927 PA 175, entitled
"The code of criminal procedure,"
by amending section 1 of chapter I (MCL 761.1), as amended by 2017 PA 2, and by adding section 12 to chapter III.
the people of the state of michigan enact:
(a) "Act" or "doing
of an act" includes an omission to act.
(b) "Clerk"
means the clerk or a deputy clerk of the court.
(c) "Complaint"
means a written accusation, under oath or upon affirmation, that a felony,
misdemeanor, or ordinance violation has been committed and that the person
named or described in the accusation is guilty of the offense.
(d) "County juvenile
agency" means that term as defined in section 2 of the county juvenile
agency act, 1998 PA 518, MCL 45.622.
(e)
"Emergency motion" means a motion that is filed by the defendant
alleging a need for an emergency hearing for any of the following reasons:
(i) Deprivation of liberty.
(ii) A constitutional violation including,
but not limited to, a due process or a cruel and unusual punishment violation.
(iii) A matter that would result in
irreparable harm to the defendant if not heard on an emergency basis.
(f)
(e) "Federal law enforcement officer" means an
officer or agent employed by a law enforcement agency of the United States
government whose primary responsibility is enforcing laws of the United States.
(g)
(f) "Felony" means a violation of a penal law of
this state for which the offender, upon conviction, may be punished by
imprisonment for more than 1 year or an offense expressly designated by law to
be a felony.
(h)
(g) "Indictment" means 1 or more of the
following:
(i) An indictment.
(ii) An information.
(iii) A presentment.
(iv) A complaint.
(v) A warrant.
(vi) A formal written
accusation.
(vii) Unless a contrary
intention appears, a count contained in any document described in subparagraphs
(i) through (vi).
(i) (h) "Jail", "prison", or a
similar word includes a juvenile facility in which a juvenile has been placed
pending trial under section 27a of chapter IV.
(j) (i) "Judicial district" means the
following:
(i) With regard to
the circuit court, the county.
(ii) With regard to
municipal courts, the city in which the municipal court functions or the
village served by a municipal court under section 9928 of the revised
judicature act of 1961, 1961 PA 236, MCL 600.9928.
(iii) With regard to
the district court, the county, district, or political subdivision in which
venue is proper for criminal actions.
(k) (j) "Juvenile" means a person within the
jurisdiction of the circuit court under section 606 of the revised judicature
act of 1961, 1961 PA 236, MCL 600.606.
(l) (k) "Juvenile facility" means a county
facility, an institution operated as an agency of the county or family division
of the circuit court, or an institution or agency described in the youth
rehabilitation services act, 1974 PA 150, MCL 803.301 to 803.309, to which a
juvenile has been committed under section 27a of chapter IV.
(m) (l) "Magistrate"
means a judge of the district court or a judge of a municipal court. Magistrate
does not include a district court magistrate, except that a district court
magistrate may exercise the powers, jurisdiction, and duties of a magistrate if
specifically provided in this act, the revised judicature act of 1961, 1961 PA
236, MCL 600.101 to 600.9947, or any other statute. This definition does not
limit the power of a justice of the supreme court, a circuit judge, or a judge
of a court of record having jurisdiction of criminal cases under this act, or
deprive him or her of the power to exercise the authority of a magistrate.
(n) (m) "Minor offense" means a misdemeanor
or ordinance violation for which the maximum permissible imprisonment does not
exceed 92 days and the maximum permissible fine does not exceed $1,000.00.
(o) (n) "Misdemeanor" means a violation of a
penal law of this state that is not a felony or a violation of an order, rule,
or regulation of a state agency that is punishable by imprisonment or a fine
that is not a civil fine.
(p) (o) "Ordinance violation" means either of
the following:
(i) A violation of an
ordinance or charter of a city, village, township, or county that is punishable
by imprisonment or a fine that is not a civil fine.
(ii) A violation of an
ordinance, rule, or regulation of any other governmental entity authorized by
law to enact ordinances, rules, or regulations that is punishable by
imprisonment or a fine that is not a civil fine.
(q) (p) "Person", "accused", or a
similar word means an individual or, unless a contrary intention appears, a
public or private corporation, partnership, or unincorporated or voluntary
association.
(r) (q) "Property" includes any matter or
thing upon or in respect to which an offense may be committed.
(s) (r) "Prosecuting attorney" means the
prosecuting attorney for a county, an assistant prosecuting attorney for a
county, the attorney general, the deputy attorney general, an assistant
attorney general, a special prosecuting attorney, or, in connection with the
prosecution of an ordinance violation, an attorney for the political
subdivision or governmental entity that enacted the ordinance, charter, rule,
or regulation upon which the ordinance violation is based.
(t) (s) "Recidivism" means any rearrest,
reconviction, or reincarceration in prison or jail for a felony or misdemeanor
offense or a probation or parole violation of an individual as measured first
after 3 years and again after 5 years from the date of his or her release from
incarceration, placement on probation, or conviction, whichever is later.
(u) (t) "Taken", "brought", or
"before" a magistrate or judge for purposes of criminal arraignment
or the setting of bail means either of the following:
(i) Physical presence
before a judge or district court magistrate.
(ii) Presence before a
judge or district court magistrate by use of 2-way interactive video
technology.
(v) (u) "Technical parole violation" means a
violation of the terms of a parolee's parole order that is not a violation of a
law of this state, a political subdivision of this state, another state, or the
United States or of tribal law.
(w) (v) "Technical probation violation" means
a violation of the terms of a probationer's probation order that is not a
violation of a law of this state, a political subdivision of this state,
another state, or the United States or of tribal law.
(x) (w) "Writing", "written", or a
similar term refers to words printed, painted, engraved, lithographed,
photographed, copied, traced, or otherwise made visible to the eye.
Sec. 12. (1) In all criminal cases in
the courts of this state, the court shall hear an emergency motion by the
defendant for alleged deprivation of liberty within 24 hours after filing the
motion with the court.
(2)
Subject to subsection (1), in all criminal cases in the courts of this state,
the court shall hear an emergency motion by the defendant within 48 hours after
filing the motion with the court.
(3)
In all probation violation and post-conviction contempt matters in the courts
of this state, the court may allow emergency motions under subsection (1) or
(2) to be heard ex parte. In the case of an ex parte hearing, notice and
opportunity to be heard must be provided to the prosecution within 24 hours for
a hearing under subsection (1) or 48 hours for a hearing under subsection (2).
(4)
The emergency motion under subsection (1) or (2) must include the following:
(a)
The basis for the emergency nature of the hearing under subsection (1) or (2).
(b)
A statement of whether the defendant or his or her counsel provided a copy of
the notice and motion to the prosecution.
(c)
The remedy requested by the defendant from the court.
(d)
The notice and motion must be provided in writing, by first-class mail,
personal delivery, or electronic communication.
(5)
An emergency motion must be given precedence on the court calendar. If no judge
has been assigned to hear the case or the assigned judge is unable to hear the
emergency motion, the chief judge shall hear the motion. If the chief judge is
unable to hear the emergency motion, any available judge shall hear the motion.
(6)
Emergency motions do not include standard motions for bond.
(7)
An individual who knowingly and intentionally makes a false statement to the court
in support of his or her emergency motion is subject to the contempt powers of
the court.
(8) The court may deny without hearing a defendant's second or subsequent emergency motion based on the same allegations or facts.