Bill Text: MI SB1048 | 2019-2020 | 100th Legislature | Chaptered
Bill Title: Criminal procedure: sentencing; rebuttable presumption for nonjail and nonprobationary sentences in certain misdemeanor cases; create. Amends secs. 5 & 34 ch. IX of 1927 PA 175 (MCL 769.5 & 769.34).
Spectrum: Strong Partisan Bill (Democrat 13-1)
Status: (Passed) 2020-12-30 - Assigned Pa 0395'20 [SB1048 Detail]
Download: Michigan-2019-SB1048-Chaptered.html
Act No. 395
Public Acts of 2020
Approved by the Governor
January 4, 2021
Filed with the Secretary of State
January 4, 2021
EFFECTIVE DATE: March 24, 2021
state of michigan
100th Legislature
Regular session of 2020
Introduced by Senators Santana, Chang, Wojno, Bayer, Bullock, Alexander, Irwin, Moss, McMorrow, Geiss, McCann, Polehanki, Hertel and Daley
ENROLLED SENATE BILL No. 1048
AN ACT to amend 1927 PA 175, entitled “An act to revise, consolidate, and codify the laws relating to criminal procedure and to define the jurisdiction, powers, and duties of courts, judges, and other officers of the court under the provisions of this act; to provide laws relative to the rights of persons accused of criminal offenses and ordinance violations; to provide for the arrest of persons charged with or suspected of criminal offenses and ordinance violations; to provide for bail of persons arrested for or accused of criminal offenses and ordinance violations; to provide for the examination of persons accused of criminal offenses; to regulate the procedure relative to grand juries, indictments, informations, and proceedings before trial; to provide for trials of persons complained of or indicted for criminal offenses and ordinance violations and to provide for the procedure in those trials; to provide for judgments and sentences of persons convicted of criminal offenses and ordinance violations; to establish a sentencing commission and to prescribe its powers and duties; to provide for procedure relating to new trials and appeals in criminal and ordinance violation cases; to provide a uniform system of probation throughout this state and the appointment of probation officers; to prescribe the powers, duties, and compensation of probation officers; to provide penalties for the violation of the duties of probation officers; to provide for procedure governing proceedings to prevent crime and proceedings for the discovery of crime; to provide for fees of officers, witnesses, and others in criminal and ordinance violation cases; to set forth miscellaneous provisions as to criminal procedure in certain cases; to provide penalties for the violation of certain provisions of this act; and to repeal all acts and parts of acts inconsistent with or contravening any of the provisions of this act,” by amending sections 5, 31, and 34 (MCL 769.5, 769.31, and 769.34), section 5 of chapter IX as amended by 2015 PA 216, section 31 of chapter IX as amended by 2004 PA 220, and section 34 of chapter IX as amended by 2002 PA 666.
The People of the State of Michigan enact:
CHAPTER IX
Sec. 5. (1) Subject to subsection (3), if a statute provides that an offense is punishable by imprisonment and a fine, the court may impose imprisonment without the fine or the fine without imprisonment.
(2) Subject to subsection (3), if a statute provides that an offense is punishable by fine or imprisonment, the court may impose both the fine and imprisonment in its discretion.
(3) There is a rebuttable presumption that the court shall sentence an individual convicted of a misdemeanor, other than a serious misdemeanor, with a fine, community service, or other nonjail or nonprobation sentence.
(4) The court may depart from the presumption under subsection (3) if the court finds reasonable grounds for the departure and states on the record the grounds for the departure.
(5) If the court finds that the sentenced person has not complied with his or her sentence, including a nonjail or nonprobation sentence, the court may issue an order for the person to show cause why he or she should not be held in contempt of court for not complying with the sentence. If the court finds the person in contempt, it may impose an additional sentence, including jail or probation if appropriate.
(6) If the finding of contempt of court under subsection (5) is for nonpayment of fines, costs, or other legal financial obligations, the court must find on the record that the person is able to comply with the payments without manifest hardship, and that the person has not made a good-faith effort to do so, before imposing an additional sentence.
(7) As used in this section, “serious misdemeanor” means that term as defined in section 61 of the William Van Regenmorter crime victim’s rights act, 1985 PA 87, MCL 780.811.
Sec. 31. As used in this section and section 34 of this chapter:
(a) “Departure” means a sentence imposed that is not within the appropriate minimum sentence range established under the sentencing guidelines set forth in chapter XVII.
(b) “Intermediate sanction” means probation or any sanction, other than imprisonment in a county jail, state prison, or state reformatory, that may lawfully be imposed. Intermediate sanction includes, but is not limited to, 1 or more of the following:
(i) Inpatient or outpatient drug treatment or participation in a drug treatment court under chapter 10A of the revised judicature act of 1961, 1961 PA 236, MCL 600.1060 to 600.1082.
(ii) Probation with any probation conditions required or authorized by law.
(iii) Residential probation.
(iv) Probation with special alternative incarceration.
(v) Mental health treatment.
(vi) Mental health or substance abuse counseling.
(vii) Participation in a community corrections program.
(viii) Community service.
(ix) Payment of a fine.
(x) House arrest.
(xi) Electronic monitoring.
(c) “Offender characteristics” means only the prior criminal record of an offender.
(d) “Offense characteristics” means the elements of the crime and the aggravating and mitigating factors relating to the offense that the legislature determines are appropriate. For purposes of this subdivision, an offense described in section 33b of the corrections code of 1953, 1953 PA 232, MCL 791.233b, that resulted in a conviction and that arose out of the same transaction as the offense for which the sentencing guidelines are being scored shall be considered as an aggravating factor.
(e) “Prior criminal record” means all of the following:
(i) Misdemeanor and felony convictions.
(ii) Probation and parole violations involving criminal activity.
(iii) Dispositions entered under section 18 of chapter XIIA of 1939 PA 288, MCL 712A.18, for acts that would have been crimes if committed by an adult.
(iv) Assignment to youthful trainee status under sections 11 to 15 of chapter II.
(v) A conviction set aside under 1965 PA 213, MCL 780.621 to 780.624.
(vi) Dispositions described in subparagraph (iii) that have been set aside under section 18e of chapter XIIA of 1939 PA 288, MCL 712A.18e, or expunged.
Sec. 34. (1) The sentencing guidelines promulgated by order of the Michigan supreme court do not apply to felonies enumerated in part 2 of chapter XVII committed on or after January 1, 1999.
(2) Except as otherwise provided in this subsection or for a departure from the appropriate minimum sentence range provided for under subsection (3), the minimum sentence imposed by a court of this state for a felony enumerated in part 2 of chapter XVII committed on or after January 1, 1999 may be within the appropriate sentence range under the version of those sentencing guidelines in effect on the date the crime was committed. Both of the following apply to minimum sentences under this subsection:
(a) If a statute mandates a minimum sentence for an individual sentenced to the jurisdiction of the department of corrections, the court shall impose a sentence in accordance with that statute. Imposing a mandatory minimum sentence is not a departure under this section. If a statute mandates a minimum sentence for an individual sentenced to the jurisdiction of the department of corrections and the statute authorizes the sentencing judge to depart from that minimum sentence, imposing a sentence that exceeds the recommended sentence range but is less than the mandatory minimum sentence is not a departure under this section. If the Michigan vehicle code, 1949 PA 300, MCL 257.1 to 257.923, mandates a minimum sentence for an individual sentenced to the jurisdiction of the department of corrections and the Michigan vehicle code, 1949 PA 300, MCL 257.1 to 257.923, authorizes the sentencing judge to impose a sentence that is less than that minimum sentence, imposing a sentence that exceeds the recommended sentence range but is less than the mandatory minimum sentence is not a departure under this section.
(b) The court shall not impose a minimum sentence, including a departure, that exceeds 2/3 of the statutory maximum sentence.
(3) A court may depart from the appropriate sentence range established under the sentencing guidelines set forth in chapter XVII if the departure is reasonable and the court states on the record the reasons for departure. All of the following apply to a departure:
(a) The court shall not use an individual’s gender, race, ethnicity, alienage, national origin, legal occupation, lack of employment, representation by appointed legal counsel, representation by retained legal counsel, appearance in propria persona, or religion to depart from the appropriate sentence range.
(b) The court shall not base a departure on an offense characteristic or offender characteristic already taken into account in determining the appropriate sentence range unless the court finds from the facts contained in the court record, including the presentence investigation report, that the characteristic has been given inadequate or disproportionate weight.
(4) Intermediate sanctions must be imposed under this chapter as follows:
(a) If the upper limit of the recommended minimum sentence range for a defendant determined under the sentencing guidelines set forth in chapter XVII is 18 months or less, the court shall impose an intermediate sanction unless the court states on the record reasonable grounds to sentence the individual to incarceration in a county jail for not more than 12 months or to the jurisdiction of the department of corrections for any sentence over 12 months.
(b) If an attempt to commit a felony designated in offense class H in part 2 of chapter XVII is punishable by imprisonment for more than 1 year, the court shall impose an intermediate sanction upon conviction of that offense absent a departure.
(c) If the upper limit of the recommended minimum sentence exceeds 18 months and the lower limit of the recommended minimum sentence is 12 months or less, the court shall sentence the offender as follows absent a departure:
(i) To imprisonment with a minimum term within that range.
(ii) To an intermediate sanction with or without a term of jail incarceration of not more than 12 months.
(5) If a crime has a mandatory determinant penalty or a mandatory penalty of life imprisonment, the court shall impose that penalty. This section does not apply to sentencing for that crime.
(6) As part of the sentence, the court may also order the defendant to pay any combination of a fine, costs, or applicable assessments. The court shall order payment of restitution as provided by law.
(7) If the trial court imposes on a defendant a minimum sentence that is longer or more severe than the appropriate sentence range, as part of the court’s advice of the defendant’s rights concerning appeal, the court shall advise the defendant orally and in writing that he or she may appeal the sentence as provided by law on grounds that it is longer or more severe than the appropriate sentence range.
(8) All of the following must be part of the record filed for an appeal of a sentence under this section:
(a) An entire record of the sentencing proceedings.
(b) The presentence investigation report. Any portion of the presentence investigation report exempt from disclosure by law is not a public record.
(c) Any other reports or documents the sentencing court used in imposing sentence.
(9) An appeal of a sentence under this section does not stay execution of the sentence.
(10) If a minimum sentence is within the appropriate guidelines sentence range, the court of appeals shall affirm that sentence and shall not remand for resentencing absent an error in scoring the sentencing guidelines or inaccurate information relied upon in determining the defendant’s sentence. A party shall not raise on appeal an issue challenging the scoring of the sentencing guidelines or challenging the accuracy of information relied upon in determining a sentence that is within the appropriate guidelines sentence range unless the party has raised the issue at sentencing, in a proper motion for resentencing, or in a proper motion to remand filed in the court of appeals.
(11) Time
served on the sentence appealed under this section is considered time served on
any sentence imposed after remand.
Secretary of the Senate
Clerk of the House of Representatives
Approved___________________________________________
____________________________________________________
Governor
