Bill Text: MI SB0264 | 2019-2020 | 100th Legislature | Introduced

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Bill Title: Courts: other; code of criminal procedure; amend to reflect marihuana violation sentence reduction act. Amends secs. 2, 3, 3c & 5, ch. XI of 1927 PA 175 (MCL 771.2 et seq.). TIE BAR WITH: SB 0262'19

Spectrum: Partisan Bill (Republican 1-0)

Status: (Introduced - Dead) 2019-04-11 - Referred To Committee On Judiciary And Public Safety [SB0264 Detail]

Download: Michigan-2019-SB0264-Introduced.html

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SENATE BILL No. 264

 

 

April 11, 2019, Introduced by Senator VANDERWALL and referred to the Committee on Judiciary and Public Safety.

 

 

 

      A bill to amend 1927 PA 175, entitled

 

"The code of criminal procedure,"

 

by amending sections 2, 3, 3c, and 5 of chapter XI (MCL 771.2,

 

771.3, 771.3c, and 771.5), section 2 as amended by 2017 PA 10,

 

section 3 as amended by 2012 PA 612, section 3c as amended by 2002

 

PA 483, and section 5 as amended by 1998 PA 520.

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

 1                            CHAPTER XI

 

 2        Sec. 2. (1) Except as provided in section 2a of this chapter

 

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

 

 4  offense that is not a felony, the probation period shall must not

 

 5  exceed 2 years. Except as provided in section 2a of this chapter

 

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

 1  felony, the probation period shall must not exceed 5 years.

 

 2        (2) Except as provided in subsection (4), section 2a of this

 

 3  chapter, and section 36 of chapter VIII, after the defendant has

 

 4  completed 1/2 of the original felony probation period of his or her

 

 5  felony probation, the department or probation department may notify

 

 6  the sentencing court. If, after a hearing to review the case and

 

 7  the defendant's conduct while on probation, the court determines

 

 8  that the defendant's behavior warrants a reduction in the

 

 9  probationary term, the court may reduce that term by 100% or less.

 

10  The victim must be notified of the date and time of the hearing and

 

11  be given an opportunity to be heard. The court shall consider the

 

12  impact on the victim and repayment of outstanding restitution

 

13  caused by reducing the defendant's probationary term. Not less than

 

14  28 days before reducing or terminating a period of probation or

 

15  conducting a review under this section, the court shall notify the

 

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

 

17  attorney, the defendant's attorney. However, this subsection does

 

18  not apply to a defendant who is subject to a mandatory probation

 

19  term.

 

20        (3) The department of corrections shall report, no later than

 

21  December 31 of each year, after the effective date of the

 

22  amendatory act that added this subsection, to the committees of the

 

23  senate and house of representatives concerning the judiciary or

 

24  criminal justice the number of defendants referred to the court for

 

25  a hearing under subsection (2). The state court administrative

 

26  office shall report, no later than December 31 of each year, after

 

27  the effective date of the amendatory act that added this

 1  subsection, to the committees of the senate and house of

 

 2  representatives concerning the judiciary the number of probationers

 

 3  who were released early from probation under subsection (2).

 

 4        (4) A defendant who was convicted of 1 or more of the

 

 5  following crimes is not eligible for reduced probation under

 

 6  subsection (2):

 

 7        (a) A violation of section 81(5) of the Michigan penal code,

 

 8  1931 PA 328, MCL 750.81.

 

 9        (b) A violation of section 84 of the Michigan penal code, 1931

 

10  PA 328, MCL 750.84.

 

11        (c) A violation of section 520c of the Michigan penal code,

 

12  1931 PA 328, MCL 750.520c.

 

13        (d) A violation of section 520e of the Michigan penal code,

 

14  1931 PA 328, MCL 750.520e.

 

15        (5) The court shall, by order to be entered in the case as the

 

16  court directs by general rule or in each case, fix and determine

 

17  the period and conditions of probation. The order is part of the

 

18  record in the case. The court may amend the order in form or

 

19  substance at any time. If the court reduces a defendant's

 

20  probationary term under subsection (2), the period by which that

 

21  term was reduced must be reported to the department of corrections.

 

22        (6) A defendant who was placed on probation under section 1(4)

 

23  of this chapter as it existed before March 1, 2003 for an offense

 

24  committed before March 1, 2003 is subject to the conditions of

 

25  probation specified in section 3 of this chapter, including payment

 

26  of a probation supervision fee as prescribed in section 3c of this

 

27  chapter, and to revocation for violation of these conditions, but

 1  the probation period must not be reduced other than by a revocation

 

 2  that results in imprisonment or as otherwise provided by law.

 

 3        (7) If an individual is placed on probation for a listed

 

 4  offense as that term is defined in section 2 of the sex offenders

 

 5  registration act, 1994 PA 295, MCL 28.722, the individual's

 

 6  probation officer shall register the individual or accept the

 

 7  individual's registration as provided in that act.

 

 8        (8) An order entered under this section is subject to the

 

 9  marihuana violation sentence reduction act.

 

10        (9) (8) Subsection (1) does not apply to a juvenile placed on

 

11  probation and committed under section 1(3) or (4) of chapter IX to

 

12  an institution or agency described in the youth rehabilitation

 

13  services act, 1974 PA 150, MCL 803.301 to 803.309.

 

14        Sec. 3. (1) The sentence of probation shall must include all

 

15  of the following conditions:

 

16        (a) During the term of his or her probation, the probationer

 

17  shall not violate any criminal law of this state, the United

 

18  States, or another state or any ordinance of any municipality in

 

19  this state or another state.

 

20        (b) During the term of his or her probation, the probationer

 

21  shall not leave the state without the consent of the court granting

 

22  his or her application for probation.

 

23        (c) The probationer shall report to the probation officer,

 

24  either in person or in writing, monthly or as often as the

 

25  probation officer requires. This subdivision does not apply to a

 

26  juvenile placed on probation and committed under section 1(3) or

 

27  (4) of chapter IX to an institution or agency described in the

 1  youth rehabilitation services act, 1974 PA 150, MCL 803.301 to

 

 2  803.309.

 

 3        (d) If sentenced in circuit court, the probationer shall pay a

 

 4  probation supervision fee as prescribed in section 3c of this

 

 5  chapter.

 

 6        (e) The probationer shall pay restitution to the victim of the

 

 7  defendant's course of conduct giving rise to the conviction or to

 

 8  the victim's estate as provided in chapter IX. An order for payment

 

 9  of restitution may be modified and shall must be enforced as

 

10  provided in chapter IX.

 

11        (f) The probationer shall pay an assessment ordered under

 

12  section 5 of 1989 PA 196, MCL 780.905.

 

13        (g) The probationer shall pay the minimum state cost

 

14  prescribed by section 1j of chapter IX.

 

15        (h) If the probationer is required to be registered under the

 

16  sex offenders registration act, 1994 PA 295, MCL 28.721 to 28.736,

 

17  the probationer shall comply with that act.

 

18        (2) As a condition of probation, the court may require the

 

19  probationer to do 1 or more of the following:

 

20        (a) Be imprisoned in the county jail for not more than 12

 

21  months at the time or intervals that may be consecutive or

 

22  nonconsecutive, within the probation as the court determines.

 

23  However, the period of confinement shall must not exceed the

 

24  maximum period of imprisonment provided for the offense charged if

 

25  the maximum period is less than 12 months. The court may permit day

 

26  parole as authorized under 1962 PA 60, MCL 801.251 to 801.258. The

 

27  court may, subject to sections 3d and 3e of this chapter, permit

 1  the individual to be released from jail to work at his or her

 

 2  existing job or to attend a school in which he or she is enrolled

 

 3  as a student. This subdivision does not apply to a juvenile placed

 

 4  on probation and committed under section 1(3) or (4) of chapter IX

 

 5  to an institution or agency described in the youth rehabilitation

 

 6  services act, 1974 PA 150, MCL 803.301 to 803.309.

 

 7        (b) Pay immediately or within the period of his or her

 

 8  probation a fine imposed when placed on probation.

 

 9        (c) Pay costs pursuant to subsection (5).

 

10        (d) Pay any assessment ordered by the court other than an

 

11  assessment described in subsection (1)(f).

 

12        (e) Engage in community service.

 

13        (f) Agree to pay by wage assignment any restitution,

 

14  assessment, fine, or cost imposed by the court.

 

15        (g) Participate in inpatient or outpatient drug treatment or,

 

16  beginning January 1, 2005, participate in a drug treatment court

 

17  under chapter 10A of the revised judicature act of 1961, 1961 PA

 

18  236, MCL 600.1060 to 600.1084.600.1088.

 

19        (h) Participate in mental health treatment.

 

20        (i) Participate in mental health or substance abuse

 

21  counseling.

 

22        (j) Participate in a community corrections program.

 

23        (k) Be under house arrest.

 

24        (l) Be subject to electronic monitoring.

 

25        (m) Participate in a residential probation program.

 

26        (n) Satisfactorily complete a program of incarceration in a

 

27  special alternative incarceration unit as provided in section 3b of

 1  this chapter.

 

 2        (o) Be subject to conditions reasonably necessary for the

 

 3  protection of 1 or more named persons.

 

 4        (p) Reimburse the county for expenses incurred by the county

 

 5  in connection with the conviction for which probation was ordered

 

 6  as provided in the prisoner reimbursement to the county act, 1984

 

 7  PA 118, MCL 801.81 to 801.93.

 

 8        (q) Complete his or her high school education or obtain the

 

 9  equivalency of a high school education in the form of a general

 

10  education development (GED) certificate.

 

11        (3) The court may impose other lawful conditions of probation

 

12  as the circumstances of the case require or warrant or as in its

 

13  judgment are proper.

 

14        (4) If an order or amended order of probation contains a

 

15  condition for the protection of 1 or more named persons as provided

 

16  in subsection (2)(o), the court or a law enforcement agency within

 

17  the court's jurisdiction shall enter the order or amended order

 

18  into the law enforcement information network. If the court rescinds

 

19  the order or amended order or the condition, the court shall remove

 

20  the order or amended order or the condition from the law

 

21  enforcement information network or notify that law enforcement

 

22  agency and the law enforcement agency shall remove the order or

 

23  amended order or the condition from the law enforcement information

 

24  network.

 

25        (5) If the court requires the probationer to pay costs under

 

26  subsection (2), the costs shall must be limited to expenses

 

27  specifically incurred in prosecuting the defendant or providing

 1  legal assistance to the defendant and supervision of the

 

 2  probationer.

 

 3        (6) If the court imposes costs under subsection (2) as part of

 

 4  a sentence of probation, all of the following apply:

 

 5        (a) The court shall not require a probationer to pay costs

 

 6  under subsection (2) unless the probationer is or will be able to

 

 7  pay them during the term of probation. In determining the amount

 

 8  and method of payment of costs under subsection (2), the court

 

 9  shall take into account the probationer's financial resources and

 

10  the nature of the burden that payment of costs will impose, with

 

11  due regard to his or her other obligations.

 

12        (b) A probationer who is required to pay costs under

 

13  subsection (1)(g) or (2)(c) and who is not in willful default of

 

14  the payment of the costs may petition the sentencing judge or his

 

15  or her successor at any time for a remission of the payment of any

 

16  unpaid portion of those costs. If the court determines that payment

 

17  of the amount due will impose a manifest hardship on the

 

18  probationer or his or her immediate family, the court may remit all

 

19  or part of the amount due in costs or modify the method of payment.

 

20        (7) If a probationer is required to pay costs as part of a

 

21  sentence of probation, the court may require payment to be made

 

22  immediately or the court may provide for payment to be made within

 

23  a specified period of time or in specified installments.

 

24        (8) If a probationer is ordered to pay costs as part of a

 

25  sentence of probation, compliance with that order shall must be a

 

26  condition of probation. The court may revoke probation if the

 

27  probationer fails to comply with the order and if the probationer

 1  has not made a good faith effort to comply with the order. In

 

 2  determining whether to revoke probation, the court shall consider

 

 3  the probationer's employment status, earning ability, and financial

 

 4  resources, the willfulness of the probationer's failure to pay, and

 

 5  any other special circumstances that may have a bearing on the

 

 6  probationer's ability to pay. The proceedings provided for in this

 

 7  subsection are in addition to those provided in section 4 of this

 

 8  chapter.

 

 9        (9) If entry of judgment is deferred in the circuit court, the

 

10  court shall require the individual to pay a supervision fee in the

 

11  same manner as is prescribed for a delayed sentence under section

 

12  1(3) of this chapter, shall require the individual to pay the

 

13  minimum state costs prescribed by section 1j of chapter IX, and may

 

14  impose, as applicable, the conditions of probation described in

 

15  subsections (1), (2), and (3).

 

16        (10) If sentencing is delayed or entry of judgment is deferred

 

17  in the district court or in a municipal court, the court shall

 

18  require the individual to pay the minimum state costs prescribed by

 

19  section 1j of chapter IX and may impose, as applicable, the

 

20  conditions of probation described in subsections (1), (2), and (3).

 

21        (11) An order entered under this section is subject to the

 

22  marijuana violation sentence reduction act.

 

23        Sec. 3c. (1) The circuit court shall include in each order of

 

24  probation for a defendant convicted of a crime that the department

 

25  of corrections shall collect a probation supervision fee of not

 

26  more than $135.00 multiplied by the number of months of probation

 

27  ordered, but not more than 60 months. The fee is payable when the

 1  probation order is entered, but the fee may be paid in monthly

 

 2  installments if the court approves installment payments for that

 

 3  probationer. In determining the amount of the fee, the court shall

 

 4  consider the probationer's projected income and financial

 

 5  resources. The court shall use the following table of projected

 

 6  monthly income in determining the amount of the fee to be ordered:

 

 

7	Projected Monthly Income        Amount of Fee
8	$       0-249.99                $ 0.00
9	$  250.00-499.99                $10.00
10	$  500.00-749.99                $25.00
11	$  750.00-999.99                $40.00
12	$1,000.00 or more               5% of projected monthly
13	income, but not more than
14	$135.00

 

 

15        The court may order a higher amount than indicated by the

 

16  table, up to the maximum of $135.00 multiplied by the number of

 

17  months of probation ordered, but not more than 60 months, if the

 

18  court determines that the probationer has sufficient assets or

 

19  other financial resources to warrant the higher amount. If the

 

20  court orders a higher amount, the amount and the reasons for

 

21  ordering that amount shall be stated in the court order. The fee

 

22  shall must be collected as provided in section 25a of the

 

23  corrections code of 1953, 1953 PA 232, MCL 791.225a. A person shall

 

24  must not be subject to more than 1 supervision fee at the same

 

25  time. If a supervision fee is ordered for a person for any month or

 

26  months during which that person already is subject to a supervision

 

27  fee, the court shall waive the fee having the shorter remaining

 1  duration.

 

 2        (2) If a person who is subject to a probation supervision fee

 

 3  is also subject to any combination of fines, costs, restitution

 

 4  orders, assessments, or payments arising out of the same criminal

 

 5  proceeding, the allocation of money collected for those obligations

 

 6  shall must be as otherwise provided in section 22 of chapter XV.

 

 7        (3) This section does not apply to a juvenile placed on

 

 8  probation and committed under section 1(3) or (4) of chapter IX to

 

 9  an institution or agency described in the youth rehabilitation

 

10  services act, 1974 PA 150, MCL 803.301 to 803.309.

 

11        (4) An order entered under this section is subject to the

 

12  marihuana violation sentence reduction act.

 

13        Sec. 5. (1) When the probation period terminates, the

 

14  probation officer shall report that fact and the probationer's

 

15  conduct during the probation period to the court. Upon receiving

 

16  the report, subject to the marihuana violation sentence reduction

 

17  act, the court may discharge the probationer from further

 

18  supervision and enter a judgment of suspended sentence or extend

 

19  the probation period as the circumstances require, so long as the

 

20  maximum probation period is not exceeded.

 

21        (2) If a probationer is identified as a qualifying individual,

 

22  the court shall enter an order that complies with the marihuana

 

23  violation sentence reduction act.

 

24        (3) (2) This section does not apply to a juvenile placed on

 

25  probation and committed under section 1(3) or (4) of chapter IX to

 

26  an institution or agency described in the youth rehabilitation

 

27  services act, 1974 PA 150, MCL 803.301 to 803.309.

 1        (4) As used in this section, "qualifying individual" means

 

 2  that term as defined in section 3 of the marihuana violation

 

 3  sentence reduction act.

 

 4        Enacting section 1. This amendatory act does not take effect

 

 5  unless Senate Bill No. 262

 

 6        of the 100th Legislature is enacted into law.