March 23, 2005, Introduced by Reps. Robertson, Brandenburg, Pastor, Garfield, Marleau and Byrnes and referred to the Committee on Judiciary.
A bill to amend 1931 PA 328, entitled
"The Michigan penal code,"
by amending section 165 (MCL 750.165), as amended by 2004 PA 570.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 165. (1) If the court orders an individual to pay support
for the individual's former or current spouse, or for a child of
the individual, and the individual does not pay the support in the
amount or at the time stated in the order, the individual is guilty
of
a felony punishable by imprisonment for not more than 4 years or
by
a fine of not more than $2,000.00, or both. or misdemeanor, as
provided in this section, punishable by imprisonment or a fine, or
both, as provided in this section. An individual shall not be
prosecuted under this section unless 1 or more of the following are
true of that individual in relation to the support order or the
action in which the support order was issued:
(2)
This section does not apply unless the individual ordered
to
pay support appeared in, or received notice by personal service
of,
the action in which the support order was issued.
(a) The individual was apprehended on a bench warrant.
(b) The individual appeared at a show cause hearing.
(c) The individual made any voluntary or involuntary child
support payment.
(d) The individual responded to a pleading.
(e) The individual objected to a child support enforcement
action.
(f) The individual received notice by personal service or
certified mail.
(2) If an individual is found guilty of violating subsection
(1) and 1 or more of the following apply, the individual is guilty
of a felony and shall be punished by imprisonment for not more than
10 years or a fine of not more than $15,000.00 or 3 times the
unpaid support, whichever is greater, or by both imprisonment and a
fine:
(a) Before the individual petitioned for modification or
reduction of the support order and received a final determination
on the petition, the past due support totaled $20,000.00 or more.
(b) The individual failed to pay the support prescribed in the
court order for longer than 5 years.
(c) The individual's past due support totals the amount stated
in subsection (3)(a) and the individual has 2 or more prior
convictions under this section.
(3) If an individual is found guilty of violating subsection
(1) and 1 or more of the following apply, the individual is guilty
of a felony and shall be punished by imprisonment for not more than
5 years or a fine of not more than $10,000.00 or 3 times the unpaid
support, whichever is greater, or by both imprisonment and a fine:
(a) Before the individual petitioned for modification or
reduction of the support order and received a final determination
on the petition, the past due support totaled $3,000.00 or more but
less than $20,000.00.
(b) The individual failed to pay the support prescribed in the
court order for longer than 3 years but not longer than 5 years.
(c) The individual's past due support totals the amount stated
in subsection (4)(a) and the individual has 2 or more prior
convictions under this section.
(4) If an individual is found guilty of violating subsection
(1) and 1 or more of the following apply, the individual is guilty
of a misdemeanor and shall be punished by imprisonment for not more
than 1 year or a fine of not more than $2,000.00 or 3 times the
unpaid support, whichever is greater, or by both imprisonment and a
fine:
(a) Before the individual petitioned for modification or
reduction of the support order and received a final determination
on the petition, the past due support totaled less than $3,000.00.
(b) The individual failed to pay the support prescribed in the
court order for longer than 90 days but not longer than 3 years.
(5) Except as otherwise provided in this subsection, if the
prosecuting attorney intends to seek a sentence under subsection
(2)(c) or (3)(c) based on the amount of the defendant's past due
support, that amount may be determined as of any date on or after
the date the warrant was issued for the defendant's arrest, and
until and including the date of that arrest. If, before the
warrant was issued, a petition for modification of the defendant's
support was filed with the court and a final determination on the
petition reduces the defendant's past due support, or if the court
reduces the defendant's past due support under section 3b of the
support and parenting time enforcement act, 1982 PA 295, MCL
552.603b, the amount of past due support for the purpose of this
subsection is that reduced amount.
(6) If the prosecuting attorney intends to seek a sentence
under subsection (2)(c) or (3)(c) based upon the defendant having 1
or more prior convictions, the prosecuting attorney shall include
on the complaint and information a statement listing the prior
conviction or convictions. The existence of the defendant's prior
conviction or convictions shall be determined by the court, without
a jury, at sentencing or at a separate hearing for that purpose
before sentencing. The existence of a prior conviction may be
established by any evidence relevant for that purpose, including,
but not limited to, 1 or more of the following:
(a) A certified copy of the judgment of conviction.
(b) A transcript of a prior trial, plea-taking, or sentencing.
(c) Information contained in a presentence report.
(d) The defendant's statement.
(7) If the sentence for a conviction under this section is
enhanced by 1 or more prior convictions, those prior convictions
shall not be used to further enhance the sentence for the
conviction under section 10, 11, or 12 of chapter IX of the code of
criminal procedure, 1927 PA 175, MCL 769.10, 769.11, and 769.12.
(8) (3)
Unless the individual deposits a cash bond of not
less than $500.00 or 25% of the arrearage, whichever is greater,
upon arrest for a violation of this section, the individual shall
remain in custody until the arraignment. If the individual remains
in custody, the court shall address the amount of the cash bond at
the arraignment and at the preliminary examination and, except for
good cause shown on the record, shall order the bond to be
continued at not less than $500.00 or 25% of the arrearage,
whichever is greater. At the court's discretion, the court may set
the cash bond at an amount not more than 100% of the arrearage and
add to that amount the amount of the costs that the court may
require under section 31(3) of the support and parenting time
enforcement act, 1982 PA 295, MCL 552.631. The court shall specify
that the cash bond amount be entered into the L.E.I.N. If a bench
warrant under section 31 of the support and parenting time
enforcement act, 1982 PA 295, MCL 552.631, is outstanding for an
individual when the individual is arrested for a violation of this
section, the court shall notify the court handling the civil
support case under the support and parenting time enforcement act,
1982 PA 295, MCL 552.601 to 552.650, that the bench warrant may be
recalled.
(9) (4)
The court may suspend the sentence
of an individual
convicted under this section if the individual files with the court
a bond in the amount and with the sureties the court requires. At a
minimum, the bond must be conditioned on the individual's
compliance with the support order. If the court suspends a sentence
under this subsection and the individual does not comply with the
support order or another condition on the bond, the court may order
the individual to appear and show cause why the court should not
impose the sentence and enforce the bond. After the hearing, the
court may enforce the bond or impose the sentence, or both, or may
permit the filing of a new bond and again suspend the sentence. The
court shall order a support amount enforced under this section to
be paid to the clerk or friend of the court or to the state
disbursement unit.
(10) (5)
As used in this section, "state
disbursement unit"
or
"SDU" means the entity established in section 6 of the office of
child
support act, 1971 PA 174, MCL 400.236. "prior conviction"
does not include a conviction for a violation of subsection (4)(b).