House Introduced Bill 5406

HOUSE BILL No. 5406

December 4, 1997, Introduced by Rep. Wallace and referred to the Committee on Judiciary.

A bill to amend 1927 PA 175, entitled

"The code of criminal procedure,"

by amending sections 1, 2, and 3 of chapter XI (MCL 771.1, 771.2,

and 771.3), section 1 as amended by 1993 PA 185, section 2 as

amended by 1994 PA 286, and section 3 as amended by 1994 PA 445.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

1 CHAPTER XI

2 Sec. 1. (1) In all prosecutions A PROSECUTION for

3 felonies A FELONY or misdemeanors A MISDEMEANOR, except

4 murder, treason, criminal sexual conduct in the first or third

5 degree, OR robbery while armed, and major controlled substance

6 offenses not described in subsection (4), if the defendant has

7 been found guilty upon verdict or plea, and if it appears to the

8 satisfaction of the court DETERMINES that the defendant is not

9 likely again to engage in an offensive or criminal course of

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1 conduct and that the public good does not require that the

2 defendant suffer the penalty imposed by law, the court may place

3 the defendant on probation under the charge and supervision of a

4 probation officer.

5 (2) Except as provided in subsection (4), in IN an action

6 in which the court may place the defendant on probation, the

7 court may delay the imposing of sentence of the defendant for a

8 period of not to exceed MORE THAN 1 year for the purpose of

9 giving TO GIVE the defendant an opportunity to prove to the

10 court his or her eligibility for probation or other leniency com-

11 patible with the ends of justice and the rehabilitation of the

12 defendant. When the sentencing is delayed, the court shall make

13 an order stating the reason for the delay. , which THE order

14 shall be entered upon the records of the court. The delay in

15 passing sentence shall DOES not deprive the court of jurisdic-

16 tion to sentence the defendant at any time during the period of

17 delay.

18 (3) If a defendant is before the circuit court and is made

19 subject to THE COURT ORDERS a delay in imposing sentence under

20 subsection (2), the court shall include in the delayed sentence

21 order THE REQUIREMENT that the department of corrections shall

22 collect a supervision fee of not more than $30.00 multiplied by

23 the number of months of delay ordered, but not more than 12

24 months. The fee is payable when the delayed sentence order is

25 entered, but the fee may be paid in monthly installments if the

26 court approves installment payments for that defendant. In

27 determining the amount of the fee, the court shall consider the

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1 defendant's projected income and financial resources. The court

2 shall use the following table of projected monthly income in

3 determining the amount of the fee to be ordered:

4 Projected Monthly Income Amount of Fee

5 $ 0-249.99 $ 0.00

6 $ 250.00-499.99 $10.00

7 $ 500.00-749.99 $20.00

8 $ 750.00 or more $30.00

9 The court may order a higher amount than indicated by the table,

10 up to the maximum of $30.00 multiplied by the number of months of

11 delay ordered but not more than 12 months, if the court deter-

12 mines that the defendant has sufficient assets or other financial

13 resources to warrant the higher amount. If the court orders a

14 higher amount, the COURT SHALL STATE THE amount and the reasons

15 for ordering that amount shall be stated in the court ITS

16 order. The fee shall be collected as provided in section 25a of

17 Act No. 232 of the Public Acts of 1953, being section 791.225a

18 of the Michigan Compiled Laws 1953 PA 232, MCL 791.225A. A

19 person shall not be subject to more than 1 supervision fee at the

20 same time. If a supervision fee is ordered for a person for any

21 month or months during which that person already is subject to a

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1 supervision fee, the court shall waive the fee having the shorter

2 remaining duration.

3 (4) The sentencing judge may place a defendant on life pro-

4 bation pursuant to subsection (1) if the defendant is convicted

5 for a violation of section 7401(2)(a)(iv) or 7403(2)(a)(iv) of

6 the public health code, Act No. 368 of the Public Acts of 1978,

7 being sections 333.7401 or 333.7403 of the Michigan Compiled

8 Laws, or conspiracy to commit either of those 2 offenses.

9 Subsection (2) does not apply to this subsection.

10 (4) (5) Beginning June 1, 1988, this section does not

11 apply to a juvenile placed on probation and committed under sec-

12 tion 1(3) or (4) of chapter IX to a state institution or agency

13 described in the youth rehabilitation services act, Act No. 150

14 of the Public Acts of 1974, being sections 803.301 to 803.309 of

15 the Michigan Compiled Laws 1974 PA 150, MCL 803.301 TO 803.309.

16 Sec. 2. (1) Except as provided in section 2a of this chap-

17 ter, if the defendant is convicted for an offense that is not a

18 felony, the period of probation shall not exceed 2 years. Except

19 as provided in section 2a of this chapter, if the defendant is

20 convicted of a felony that is not a major controlled substance

21 offense, the period of probation shall not exceed 5 years.

22 (2) The court shall by order, to be filed or entered in the

23 cause as the court may direct by general rule or in each case,

24 fix and determine the period and conditions of probation. The

25 order, whether it is filed or entered, is part of the record in

26 the cause. The court may amend the order, in form or in

27 substance, at any time.

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1 (3) A defendant who is placed on probation pursuant to

2 section 1(4) of this chapter shall be placed on probation for

3 life. That sentence shall be made subject to conditions of pro-

4 bation specified in section 3 of this chapter, including the pay-

5 ment of a probation supervision fee as prescribed in section 3c

6 of this chapter, and to revocation for violation of those condi-

7 tions, but the period of probation shall not be reduced other

8 than by a revocation that results in imprisonment.

9 (3) (4) If an individual is placed on probation for a

10 listed offense enumerated in section 2 of the sex offenders reg-

11 istration act, 1994 PA 295, MCL 28.722, the individual's proba-

12 tion officer shall register the individual or accept the

13 individual's registration pursuant to UNDER that act.

14 (4) (5) Subsections (1) and (3) do SUBSECTION (1) DOES not

15 apply to a juvenile placed on probation and committed under sec-

16 tion 1(3) or (4) of chapter IX to a state institution or agency

17 described in the youth rehabilitation services act, Act No. 150

18 of the Public Acts of 1974, being sections 803.301 to 803.309 of

19 the Michigan Compiled Laws 1974 PA 150, MCL 803.301 TO 803.309.

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

21 the following conditions:

22 (a) The probationer shall not, during the term of his or her

23 probation, violate any criminal law of this state, the United

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

25 this state or another state.

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1 (b) The probationer shall not, during the term of his or her

2 probation, leave the state without the consent of the court

3 granting his or her application for probation.

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

5 either in person or in writing, monthly or as often as the proba-

6 tion officer requires. This subdivision does not apply to a

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

8 (4) of chapter IX to a state institution or agency described in

9 the youth rehabilitation services act, Act No. 150 of the Public

10 Acts of 1974, being sections 803.301 to 803.309 of the Michigan

11 Compiled Laws 1974 PA 150, MCL 803.301 TO 803.309.

12 (d) The probationer, if convicted of a felony, shall pay a

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

14 chapter.

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

16 the defendant's course of conduct giving rise to the conviction

17 or to the victim's estate as provided in chapter IX. An order

18 for payment of restitution may be modified and shall be enforced

19 as provided in chapter IX.

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

21 section 5 of Act No. 196 of the Public Acts of 1989, being sec-

22 tion 780.905 of the Michigan Compiled Laws 1989 PA 196,

23 MCL 780.905.

24 (g) Beginning October 1, 1995, if the probationer is

25 required to be registered pursuant to UNDER the sex offenders

26 registration act, Act No. 295 of the Public Acts of 1994, being

27 sections 28.721 to 28.732 of the Michigan Compiled Laws 1994 PA

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1 295, MCL 28.721 TO 28.732, the probationer shall comply with that

2 act.

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

4 probationer to do 1 or more of the following:

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

6 months, at the time or intervals, which may be consecutive or

7 nonconsecutive, within the probation as the court determines.

8 However, the period of confinement shall not exceed the maximum

9 period of imprisonment provided for the offense charged if the

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

11 parole as authorized under Act No. 60 of the Public Acts of

12 1961, being sections 801.251 to 801.258 of the Michigan Compiled

13 Laws 1962 PA 60, MCL 801.251 TO 801.258. The court may permit a

14 work or school release from jail. This subdivision does not

15 apply to a juvenile placed on probation and committed under sec-

16 tion 1(3) or (4) of chapter IX to a state institution or agency

17 described in Act No. 150 of the Public Acts of 1974 THE YOUTH

18 REHABILITATION SERVICES ACT, 1974 PA 150, MCL 803.301 TO

19 803.309.

20 (b) Pay immediately or within the period of his or her pro-

21 bation a fine imposed when placed on probation.

22 (c) Pay costs pursuant to UNDER subsection (4) (3).

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

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

25 (e) Engage in community service.

26 (f) Agree to pay any restitution, assessment, fine, or cost

27 imposed by the court by wage assignment.

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1 (g) Participate in inpatient or outpatient drug treatment.

2 (h) Participate in mental health treatment.

3 (i) Participate in mental health or substance abuse

4 counseling.

5 (j) Participate in a community corrections program.

6 (k) Be under house arrest.

7 (l) Be subject to electronic monitoring.

8 (m) Participate in a residential probation program.

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

10 special alternative incarceration unit as provided in section 3b

11 of this chapter.

12 (3) Subsection (2) may be applied to a person who is placed

13 on probation for life pursuant to sections 1(4) and 2(3) of this

14 chapter for the first 5 years of that probation.

15 (3) (4) The court may impose other lawful conditions of

16 probation as the circumstances of the case require or warrant, or

17 as in its judgment are proper. If the court requires the proba-

18 tioner to pay costs, the costs shall be limited to expenses spe-

19 cifically incurred in prosecuting the defendant or providing

20 legal assistance to the defendant and supervision of the

21 probationer.

22 (4) (5) If the court imposes costs as part of a sentence

23 of probation, all of the following apply:

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

25 unless the probationer is or will be able to pay them during the

26 term of probation. In determining the amount and method of

27 payment of costs, the court shall take into account the financial

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1 resources of the probationer and the nature of the burden that

2 payment of costs will impose, with due regard to his or her other

3 obligations.

4 (b) A probationer who is required to pay costs and who is

5 not in willful default of the payment of the costs, at any time,

6 may petition the sentencing judge or his or her successor for a

7 remission of the payment of any unpaid portion of those costs.

8 If the court determines that payment of the amount due will

9 impose a manifest hardship on the probationer or his or her imme-

10 diate family, the court may remit all or part of the amount due

11 in costs or modify the method of payment.

12 (5) (6) If a probationer is required to pay costs as part

13 of a sentence of probation, the court may require payment to be

14 made immediately or the court may provide for payment to be made

15 within a specified period of time or in specified installments.

16 (6) (7) If a probationer is ordered to pay costs as part

17 of a sentence of probation, compliance with that order shall be a

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

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

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

21 determining whether to revoke probation, the court shall consider

22 the probationer's employment status, earning ability, and finan-

23 cial resources, the willfulness of the probationer's failure to

24 pay, and any other special circumstances that may have a bearing

25 on the probationer's ability to pay. The proceedings provided

26 for in this subsection are in addition to those provided in

27 section 4 of this chapter.

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1 Enacting section 1. This amendatory act does not take

2 effect unless all of the following bills of the 89th Legislature

3 are enacted into law:

4 (a) Senate Bill No. 280.

5 (b) Senate Bill No. 281.

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