9.9Deferred Adjudication of Guilt

Deferred adjudication is statutorily authorized for certain crimes and refers to an arrangement where the defendant¹ pleads or is found guilty of a charged offense, but instead of entering an adjudication of guilt, the defendant is placed on probation; the case is discharged and dismissed without a judgment of guilt if the defendant successfully completes probation. See MCL 333.7411 (specified controlled substance offenses); MCL 436.1703(1)(b) (minor in possession); MCL 750.430 (impaired healthcare professional); MCL 769.4a (domestic violence/spousal abuse); MCL 750.350a (parental kidnapping); MCL 750.451c (prostitution by human trafficking victim).

Deferred adjudication is also permitted in certain circumstances for offenders admitted to a state-certified treatment court. See Section 9.14 for discussion of these specialized courts. Additionally, certain crimes committed by youthful offenders are eligible for deferred adjudication under the Holmes Youthful Trainee Act (HYTA), MCL 762.11 et seq. See Section 9.10 for a discussion of HYTA.

The crime of desertion and non-support under MCL 750.161 provides the court with authority to defer sentencing, but differs from the other statutory sections discussed in this section because it does not address the same factors. MCL 750.161(2)-(3). The statute states in relevant part:

“(1) A person who deserts and abandons his or her spouse or deserts and abandons his or her children under 17 years of age, without providing necessary and proper shelter, food, care, and clothing for them, and a person who being of sufficient ability fails, neglects, or refuses to provide necessary and proper shelter, food, care, and clothing for his or her spouse or his or her children under 17 years of age, is guilty of a felony, punishable by imprisonment in a state correctional facility for not less than 1 year and not more than 3 years, or by imprisonment in the county jail for not less than 3 months and not more than 1 year.

(2) If at any time before sentence the defendant enters into bond to the people of the state of Michigan in such penal sum for such term and with such surety or sureties as may be fixed by the court, conditioned that he or she will furnish his or her spouse and children with necessary and proper shelter, food, care, and clothing, or will pay to the clerk of the court, or other designated person, such sums of money at such times as the court shall order to be used to provide food, shelter, and clothing for his or her spouse and children, or either of them, then the court may make an order placing the defendant in charge of a probation officer. The court may require that the defendant shall from time to time report to the probation officer as provided by law. The court may extend the period of probation from time to time or the court may defer sentence in the cause, but no term of any bond or any probation period shall exceed the maximum term of imprisonment as provided for in this section.

(3) Upon failure of the defendant to comply with any of the conditions contained in the bond, the defendant may be ordered to appear before the court and show cause why sentence should not be imposed, whereupon the court may pass sentence, or for good cause shown may modify the order and further defer sentence as may be just and proper. Whenever the whereabouts of the defendant is unknown, the court may summarily issue a bench warrant for the arrest of the defendant.” MCL 750.161(1)-(3) (emphasis added).

Deferred Sentencing Authorization and Eligibility Requirements

A.Probation During Deferred Proceedings

When all of the requirements regarding statutory authorization, prior convictions, establishment of guilt, consent, and previous deferrals detailed in the preceding table are satisfied, the court places the defendant on probation, further proceedings are deferred, and no judgment or adjudication of guilt is entered. MCL 333.7411(1); MCL 436.1703(3); MCL 750.430(9); MCL 769.4a(1); MCL 750.350a(4); MCL 750.451c(2); MCL 750.451c(4).

Each statutory section authorizing deferred sentencing includes mandatory and discretionary conditions of probation specific to the particular offense.² These specific provisions will be discussed in the following sub-subsections.

Additionally, MCL 771.3(9) (deferrals in circuit court) and MCL 771.3(10) (deferrals in district court) provide broadly-applicable requirements that apply in every case where judgment is deferred.

MCL 771.3(9) provides:

“If entry of judgment is deferred in the circuit court, the court shall require the individual to pay a supervision fee in the same manner as is prescribed for a delayed sentence under [MCL 771.1(3)³], shall require the individual to pay the minimum state costs prescribed by [MCL 769.1j], and may impose, as applicable, the conditions of probation described in [MCL 771.3(1)], and subject to [MCL 771.3(11)], the conditions of probation described in [MCL 771.3(2), and MCL 771.3(3)].”

MCL 771.3(10) provides:

“If sentencing is delayed or entry of judgment is deferred in the district court or in a municipal court, the court shall require the individual to pay the minimum state costs prescribed by [MCL 769.1j,] and may impose, as applicable, the conditions of probation described in [MCL 771.3(1)], and subject to [MCL 771.3(11)], the conditions of probation described in [MCL 771.3(2), and MCL 771.3(3)].”

Note that while the procedures for deferral in circuit and district or municipal court are similar, only MCL 771.3(9), regarding deferrals in circuit court, expressly requires the individual to pay a supervision fee. MCL 771.3(9). No express language requires that a supervision fee be imposed on a defendant whose adjudication is deferred in district or municipal court; however, discretionary authority to impose a supervision fee is provided in MCL 771.3(5), which is specifically referenced by MCL 771.3(2)(c), which is in turn specifically referenced by MCL 771.3(10). Accordingly, in cases involving deferral of a felony, a supervision fee is a mandatory condition of probation under MCL 771.3(9), and in cases involving deferral of a misdemeanor, a supervision fee is a discretionary condition of probation under MCL 771.3(10).

For a detailed discussion of minimum state costs, see Section 8.11. For a detailed discussion of the conditions of probation described in [MCL 771.3(1), MCL 771.3(2), and MCL 771.3(3), see Section 9.3 and Section 9.4.

1.Conditions Specific to Deferral Under § 7411

In addition to the conditions applicable in all cases of deferred sentencing set forth in MCL 771.3(9) (circuit court) and MCL 771.3(10) (district and municipal courts),⁴ MCL 333.7411 provides that:

•payment of a probation supervision fee as prescribed in MCL 771.3c⁵ must be included as a term and condition of probation, and

•participation in a drug treatment court may be included as a term and condition, MCL 333.7411(1).

MCL 333.7411(1) provides that the terms and conditions are not limited to the mandatory supervision fee.

2.Conditions Specific to Deferral for Minor in Possession (MIP) Offense

In addition to the conditions applicable in all cases of deferred sentencing set forth in MCL 771.3(10) (district and municipal courts),⁶ MCL 436.1703(3) provides “[t]he terms and conditions of that probation include, but are not limited to”:

•“the sanctions set forth in” MCL 436.1703(1)(c), which include:

•“imprisonment for not more than 60 days, if the court finds that the minor violated an order of probation, failed to successfully complete any treatment, screening, or community service ordered by the court, or failed to pay any fine for that conviction or juvenile adjudication,”

•a fine of not more than $500;

•participation in substance use disorder services;

•community service;

•substance abuse screening and assessment at his or her own expense as described in MCL 436.1703(5), MCL 436.1703(1)(c);

•payment of costs including the minimum state cost described in MCL 712A.18m and MCL 769.1j,⁷ MCL 436.1703(3); and

•payment of probation costs required by MCL 771.3. MCL 436.1703(3).

3.Conditions Specific to Deferral for Impaired Healthcare Professional Offense

In addition to the conditions applicable in all cases of deferred sentencing set forth in MCL 771.3(10) (district and municipal courts),⁸ MCL 750.430(9) provides that the probation terms and conditions must include, but are not limited to, participation in the health professional recovery program established by MCL 333.16167. The statutory provision also expressly mentions that a defendant may be ordered to participate in a drug treatment court as a condition of his or her probation. MCL 750.430(9).

4.Conditions Specific to Deferral for Domestic Violence-Related Offenses

In addition to the conditions applicable in all cases of deferred sentencing set forth in MCL 771.3(10) (district and municipal courts),⁹ MCL 769.4a(3) specifically provides that “[a]n order of probation entered under [MCL 769.4a(1)] may include any condition of probation authorized under [MCL 771.3], including, but not limited to, requiring the accused to participate in a mandatory counseling program.” MCL 769.4a(3) (emphasis added). The statute also provides the court may order the accused to:

•pay reasonable costs of the mandatory counseling program;

•participate in a drug treatment court; and/or

•be imprisoned for not more than 12 months at a time or at consecutive or nonconsecutive intervals within the period of probation (court may also grant day parole as authorized under MCL 801.251 to MCL 801.258, and/or work or school release). MCL 769.4a(3).¹⁰

5.Conditions Specific to Deferral for Parental Kidnapping Offense

In addition to the conditions applicable in all cases of deferred sentencing set forth in MCL 771.3(9) (circuit court),¹¹ MCL 750.350a provides that the accused may be placed “on probation with lawful terms and conditions,” and states that those terms and conditions “may include participation in a drug treatment court[.]” MCL 750.350a(4).

6.Conditions Specific to Deferral for Prostitution Offenses Committed by Human Trafficking Victims

In addition to the conditions applicable in all cases of deferred sentencing set forth in MCL 771.3(9) (circuit court) and MCL 771.3(10) (district and municipal courts),¹² MCL 750.451c(4) provides that an order of probation may include, but is not limited to:

•any condition of probation authorized under MCL 771.3;

•participation in a mandatory counseling program;

•pay reasonable costs of the mandatory counseling program;

•participate in a drug treatment court; and

•imprisonment for not more than 93 days at a time or at consecutive or nonconsecutive intervals within the period of probation (court may also grant day parole as authorized under MCL 801.251 to MCL 801.258, and/or work or school release).¹³

B.Failure to Successfully Complete the Probationary Period

Generally, the court has discretion to enter a judgment of guilt and proceed to sentencing when a defendant violates a term or condition of his or her probation. See MCL 333.7411(1); MCL 436.1703(3); MCL 750.430(9); MCL 769.4a(1); MCL 750.350a(4); MCL 750.451c(2); MCL 750.451c(4).

1.§ 7411

“Upon violation of a term or condition, the court may enter an adjudication of guilt and proceed as otherwise provided.” MCL 333.7411(1).

MCL 333.7411(5) provides discretionary authority to impose additional terms as part of the sentence. Specifically:

“Except as provided in [MCL 333.7411(6)], if an individual is convicted of a violation of [Article 7 of the PHC], other than a violation of [MCL 333.7401(2)(a)(i)-(iv) or MCL 333.7403(2)(a)(i)-(iv)¹⁴], the court as part of the sentence, during the period of confinement or the period of probation, or both, may require the individual to attend a course of instruction or rehabilitation program approved by the department on the medical, psychological, and social effects of the misuse of drugs. The court may order the individual to pay a fee, as approved by the director, for the instruction or program. Failure to complete the instruction or program is a violation of the terms of probation.” MCL 333.7411(5).

Similarly, MCL 333.7411(6) provides additional requirements that apply “[i]f an individual is convicted of a second violation of [MCL 333.7341(4) (use/possession of an imitation controlled substance).]” The statute provides that “before imposing sentence under [MCL 333.7411(1)],” the court must “order the person to undergo screening and assessment by a person or agency designated by the office of substance abuse services, to determine whether the person is likely to benefit from rehabilitative services, including alcohol or drug education and alcohol or drug treatment programs.” MCL 333.7411(6). The court has discretionary authority, “[a]s part of the sentence imposed under [MCL 333.7411(1)],” to “order the person to participate in and successfully complete 1 or more appropriate rehabilitative programs.” MCL 333.7411(6). “The person shall pay for the costs of the screening, assessment, and rehabilitative services. Failure to complete a program is a violation of the terms of the probation.” MCL 333.7411(6).

Under MCL 333.7411, “the trial court maintained jurisdiction over defendant after the probationary period expired and had the authority to unsuccessfully discharge defendant from probation and enter an adjudication of guilt.” People v Tolonen, ___ Mich App ___, ___ (2024). Even though the period of defendant’s probation had expired and the trial court could not modify it, “the trial court was still required to determine whether defendant was entitled to receive the intended benefit of MCL 333.7411(1): discharge from probation and dismissal of the charge.” Tolonen, ___ Mich App at ___. Dismissal of defendant’s charge of possession of methamphetamine “was contingent on her successful completion of probation.” Id. at ___. In Tolonen, the trial court determined that defendant failed to fulfill the conditions of her probation and pursuant to MCL 333.7411(1), defendant’s guilty plea automatically resulted in a conviction and sentencing. Tolonen, ___ Mich App at ___. The trial court properly adjudicated defendant’s guilt despite the term of defendant’s probation having expired; “[t]o dismiss the charge despite defendant’s failure to comply with the terms of her probation would contradict the clear intent of MCL 333.7411 and grant defendant a significant benefit that she did not actually earn.” Tolonen, ___ Mich App at ___.

2.Minor in Possession (“MIP”)

“If a court finds that an individual violated a term or condition of probation or that the individual is utilizing [deferral under MCL 436.1703(3)] in another court, the court may enter an adjudication of guilt, or a determination in a juvenile delinquency proceeding that the individual has committed the offense, and proceed as otherwise provided by law.” MCL 436.1703(3).

3.Impaired Healthcare Professional

“Upon violation of a term or condition, the court may enter an adjudication of guilt and proceed as otherwise provided under [MCL 750.430(8)].” MCL 750.439(9). MCL 750.430(8)(a) provides that a first violation of MCL 750.430 is punishable by imprisonment for not more than 180 days or a fine of not more than $1,000, or both.

4.Domestic Violence/Spousal Abuse

“Upon a violation of a term or condition of probation, the court may enter an adjudication of guilt and proceed as otherwise provided in this chapter.” MCL 769.4a(2). However, the court must “enter an adjudication of guilt and proceed as otherwise provided in [Chapter IX of the Code of Criminal Procedure, Judgment and Sentence] if any of the following circumstances exist:

(a) The accused commits an assaultive crime during the period of probation.

(b) The accused violates an order of the court that he or she receive counseling regarding his or her violent behavior.

(c) The accused violates an order of the court that he or she have no contact with a named individual.” MCL 769.4a(4).

5.Parental Kidnapping

“Upon a violation of a term or condition of probation, the court may enter an adjudication of guilt and proceed as otherwise provided.” MCL 750.350a(4).

6.Prostitution Offenses Committed by Human Trafficking Victims

“Upon a violation of a term or condition of probation, the court may enter an adjudication of guilt and proceed as otherwise provided in this chapter.” MCL 750.451c(3).

However, the court must “enter an adjudication of guilt and proceed as otherwise provided in [Chapter LXVII of the Michigan Penal Code, Prostitution] if any of the following circumstances exist:

(a) The accused commits a violation of [MCL 750.448, MCL 750.449, MCL 750.450, or MCL 750.462] or a local ordinance substantially corresponding to [one of those statutes] during the period of probation.

(b) The accused violates an order of the court that he or she receive counseling regarding his or her violent behavior.

(c) The accused violates an order of the court that he or she have no contact with a named individual.” MCL 750.451c(5).

C.Successful Completion of the Probationary Period

A court must discharge the defendant and dismiss the proceedings against him or her when the defendant has fulfilled the terms and conditions of his or her probationary period. MCL 333.7411(1); MCL 436.1703(3); MCL 750.430(9); MCL 769.4a(5); MCL 750.350a(4); MCL 750.451c(6).

Generally, an individual may obtain only one discharge and dismissal under each respective statutory provision, MCL 333.7411(1); MCL 436.1703(3); MCL 750.430(9); MCL 769.4a(5); however, in the case of eligible prostitution offenses committed as a direct result of being a human trafficking victim, the deferral statue contains no limitation, see MCL 750.451c.

1.§ 7411

“Upon fulfillment of the terms and conditions, the court shall discharge the individual and dismiss the proceedings.” MCL 333.7411(1).

“Discharge and dismissal under [MCL 333.7411] shall be without adjudication of guilt and, except as otherwise provided by law, is not a conviction for purposes of [MCL 333.7411] or for purposes of disqualifications or disabilities imposed by law upon conviction of a crime, including the additional penalties imposed for second or subsequent convictions under [MCL 333.7413 (enhancing penalties for second or subsequent violations of Article 7 of the PHC)].” MCL 333.7411(1).

When a defendant has successfully completed the term of probation imposed under MCL 333.7411, the felony charge is dismissed and is not a felony conviction for purposes of the concealed pistol licensing act (CPLA), MCL 28.421 et seq. Carr v Midland Co Concealed Weapons Licensing Bd, 259 Mich App 428, 438 (2003).

A discharge and dismissal following a defendant’s successful fulfillment of probation under the deferred adjudication provisions of MCL 333.7411 is not a prior misdemeanor conviction for purposes of scoring prior record variable (PRV) 5. People v James, 267 Mich App 675, 679-680 (2005).

2.Minor in Possession (“MIP”)

“If an individual fulfills the terms and conditions of probation, the court shall discharge the individual and dismiss the proceedings.” MCL 436.1703(3).

“A discharge and dismissal under [MCL 436.1703] is without adjudication of guilt or without a determination in a juvenile delinquency proceeding that the individual has committed the offense and is not a conviction or juvenile adjudication for purposes of disqualifications or disabilities imposed by law on conviction of a crime.” MCL 436.1703(3).

3.Impaired Healthcare Professional

“Upon fulfillment of the terms and conditions, the court shall discharge the individual and dismiss the proceedings.” MCL 750.430(9).

“Discharge and dismissal under [MCL 750.430] shall be without adjudication of guilt and are not a conviction for purposes of [MCL 750.430] or for purposes of disqualifications or disabilities imposed by law upon conviction of a crime, including additional penalties imposed for second or subsequent convictions under this subsection.”¹⁵ MCL 750.430(9).

4.Domestic Violence/Spousal Abuse

“Upon fulfillment of the terms and conditions, the court shall discharge the person and dismiss the proceedings against the person.” MCL 769.4a(5). “Discharge and dismissal under [MCL 769.4a] must be without adjudication of guilt and is not a conviction for purposes of [MCL 769.4a] or for purposes of disqualifications or disabilities imposed by law upon conviction of a crime[.]” MCL 769.4a(5).

However, discharge and dismissal “is a prior conviction in a prosecution under [MCL 750.81(4) or MCL 750.81(5) (certain repeat offenses involving domestic assault or assault of a pregnant individual), and MCL 750.81a(3) (aggravated domestic assault with one or more previous domestic assault convictions)].” MCL 769.4a(5).

5.Parental Kidnapping

“Upon fulfillment of the terms and conditions of probation, the court shall discharge from probation and dismiss the proceedings against the parent.” MCL 750.350a(4).

“Discharge and dismissal under [MCL 750.350a(4)] shall be without adjudication of guilt and is not a conviction for purposes of disqualifications or disabilities imposed by law upon conviction of a crime, including any additional penalties imposed for second or subsequent convictions.” MCL 750.350a(4).

6.Prostitution Offenses Committed by Human Trafficking Victims

“Upon fulfillment of the terms and conditions, the court shall discharge the person and dismiss the proceedings against the person.” MCL 750.451c(6).

“Discharge and dismissal under [MCL 750.451c] must be without adjudication of guilt and is not a conviction for purposes of [MCL 750.451c] or for purposes of disqualifications or disabilities imposed by law upon conviction of a crime.” MCL 750.451c(6).

D.Record of Deferred Adjudication

1.§ 7411

All court proceedings under MCL 333.7411 are open to the public. MCL 333.7411(2). “[I]f the record of proceedings . . . is deferred under [MCL 333.7411], the record of proceedings during the period of deferral shall be closed to public inspection.” MCL 333.7411(2). However, unless a judgment of guilt is entered, the Department of State Police must retain a nonpublic record of the arrest, court proceedings, and disposition of the charge. MCL 333.7411(3). This nonpublic record is open, for limited purposes as set out in MCL 333.7411(3)(a)-(c), to courts, law enforcement personnel, prosecuting attorneys, the Michigan Commission on Law Enforcement Standards (MCOLES), the Department of Corrections, and the Department of Health and Human Services. MCL 333.7411(3).

An offender whose adjudication of guilt is deferred under MCL 333.7411 and whose case is dismissed after successful completion of the terms of probation does not qualify as “not guilty” for purposes of MCL 28.243(10), and is therefore not entitled to the destruction of his or her fingerprints and arrest card. People v Benjamin, 283 Mich App 526, 527-528, 537 (2009).¹⁶

2.Minor in Possession (“MIP”)

“The court shall maintain a nonpublic record of the matter while proceedings are deferred and the individual is on probation and if there is a discharge and dismissal under [MCL 436.1703(3)].” MCL 436.1703(3). Additionally, “[t]he secretary of state shall retain a nonpublic record of a plea and of the discharge and dismissal under [MCL 436.1703(3)].” MCL 436.1703(3).

This nonpublic record is open, for limited purposes as set out in MCL 436.1703(3)(a)-(b), to courts, prosecutors, police agencies, the Department of Corrections, and law enforcement agencies. MCL 436.1703(3).

3.Impaired Healthcare Professional

“Unless the court enters a judgment of guilt under [MCL 750.430(9)], the records and identifications division of the department of state police shall retain a nonpublic record of the arrest, court proceedings, and disposition under [MCL 750.430(9)].” MCL 750.430(9).

This nonpublic record is open, for limited purposes as set out in MCL 750.430(9)(a)-(c), to courts, law enforcement personnel, prosecuting attorneys, and the Department of Corrections. MCL 750.430(9).

4.Domestic Violence/Spousal Abuse

All court proceedings under MCL 769.4a are open to the public. MCL 769.4a(6). “[I]f the record of proceedings . . . is deferred under [MCL 769.4a], the record of proceedings during the period of deferral shall be closed to public inspection.” MCL 769.4a(6). Unless a judgment of guilt is entered, the Department of State Police must retain a nonpublic record of the arrest, court proceedings, and disposition of the charge. MCL 769.4a(7). This nonpublic record is open, for limited purposes as set out in MCL 769.4a(7)(a)-(c), to courts, law enforcement personnel, prosecuting attorneys, the Department of Corrections, and the Department of Health and Human Services. MCL 769.4a(7).

An offender whose adjudication of guilt was deferred under MCL 769.4a and whose case is dismissed after successful completion of a diversionary program does not qualify as “not guilty” and is not entitled to the destruction of his or her fingerprint card under MCL 28.243(10). McElroy v Mich State Police Criminal Justice Info Ctr, 274 Mich App 32, 33 (2007).¹⁷ 

5.Parental Kidnapping

All court proceedings under MCL 750.350a are open to the public. MCL 750.350a(5). “[I]f the record of proceedings . . . is deferred under [MCL 750.350a], the record of proceedings during the period of deferral shall be closed to public inspection.” MCL 750.350a(5). Unless a judgment of guilt is entered, the Department of State Police must retain a nonpublic record of the arrest, court proceedings, and disposition of the charge. MCL 750.350a(6). This nonpublic record is open, for limited purposes as set out in MCL 750.350a(6)(a)-(c), to courts, law enforcement personnel, prosecuting attorneys, the Department of Corrections, and the Department of Health and Human Services. MCL 750.350a(6).

6.Prostitution Offenses Committed by Human Trafficking Victims

All court proceedings under MCL 750.451c are open to the public. MCL 750.451c(7). “[I]f the record of proceedings . . . is deferred under [MCL 750.451c], the record of proceedings during the period of deferral must be closed to public inspection.” MCL 750.451c(7). Unless a judgment of guilt is entered, the Department of State Police must retain a nonpublic record of the arrest, court proceedings, and disposition of the charge. MCL 750.451c(8). This nonpublic record is open, for limited purposes as set out in MCL 750.451c(8)(a)-(c), to courts, law enforcement personnel, prosecuting attorneys, the Department of Corrections, and the Department of Health and Human Services. MCL 750.451c(8).

E.Court-Ordered Financial Obligations¹⁸

A defendant whose sentencing is deferred must still satisfy court-ordered financial obligations. See MCL 769.1k. Specifically, a defendant whose sentencing is deferred must pay the minimum state costs detailed in MCL 769.1j.¹⁹ MCL 769.1k(1)(a).

MCL 769.1k provides a general statutory basis for a court’s authority to impose fines and costs. MCL 769.1k(1)(b) and MCL 769.1k(2) provide authority to impose numerous additional discretionary court-ordered financial obligations. Victims have a constitutional right to restitution. Const 1963, art 1, § 24. Additionally, restitution is mandatory under the Crime Victim’s Rights Act (CVRA), MCL 780.751 et seq., and Michigan’s general restitution statute, MCL 769.1a. See People v Garrison, 495 Mich 362, 365 (2014). For a detailed discussion of court-ordered financial obligations, see Chapter 8.