Bill Text: MI SB1048 | 2019-2020 | 100th Legislature | Engrossed
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-Engrossed.html
Substitute For
SENATE BILL NO. 1048
A bill to amend 1927 PA 175, entitled
"The code of criminal procedure,"
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:
Sec. 5. (1) If 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) If 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 jail.
(iv) (v) Probation with special alternative incarceration.
(v) (vi) Mental health treatment.
(vi) (vii) Mental health or substance abuse counseling.
(viii) Jail.
(ix) Jail with work or school release.
(x) Jail, with or without authorization for
day parole under 1962 PA 60, MCL 801.251 to 801.258.
(vii) (xi) Participation in a community corrections program.
(viii) (xii) Community service.
(ix) (xiii) Payment of a fine.
(x) (xiv) House arrest.
(xi) (xv) 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 shall 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 has a substantial and compelling reason for that departure and 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 shall 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 a substantial and compelling reason 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. An intermediate sanction may include a jail term that does not exceed the upper limit of the recommended minimum sentence range or 12 months, whichever is less.
(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 that may include with or without a term
of imprisonment 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 shall 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 shall is not be 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)
If, upon a review of the record, the court of appeals finds the trial court did
not have a substantial and compelling reason for departing from the appropriate
sentence range, the court shall remand the matter to the sentencing judge or
another trial court judge for resentencing under this chapter.
(11) (12) Time served on the sentence appealed
under this section is considered time served on any sentence imposed after
remand.