9.8Delayed Sentencing¹

“In an action in which the court may place the defendant on probation,^[2] the court may delay sentencing the defendant for not more than 1 year to give the defendant an opportunity to prove to the court his or her eligibility for probation or other leniency compatible with the ends of justice and the defendant’s rehabilitation[.]” MCL 771.1(2). See also People v Salgat, 173 Mich App 742, 745-746 (1988) (“The purpose of a delayed sentence is to give the defendant an opportunity to demonstrate that he can fairly be placed on probation rather than be sentenced to prison.”).

“When sentencing is delayed, the court shall enter an order stating the reason for the delay upon the court’s records.” MCL 771.1(2). “[A] delayed sentence means that no sentence is initially imposed, and the charge against the defendant remains pending.” Salgat, 173 Mich App at 746.

“The delay in passing sentence does not deprive the court of jurisdiction to sentence the defendant at any time during the period of delay.” MCL 771.1(2). See Section 9.8(C) for additional discussion of the court’s sentencing jurisdiction.

See SCAO Form MC 294, Order Delaying Sentence. 

A.Conditions During Delay

“Reasonable conditions may be imposed for the delay if they will give the defendant an opportunity to prove his or her eligibility for probation or leniency.” People v Saenz, 173 Mich App 405, 409 (1988). See also People v Salgat, 173 Mich App 742, 746 (1988).³

The statute includes “participation in a drug treatment court” as an example of a way for the defendant to prove his or her eligibility for probation or leniency. See MCL 771.1(2).

The Court has stated that “[r]equiring that defendant obtain psychiatric treatment, in a proper case, may be a valid condition.” Saenz, 173 Mich App at 409. In another case, the Court noted it is proper to impose conditions similar to probation conditions, specifically opining that “the trial court could reasonably require that as a condition of the delayed sentence the defendant not violate any further laws, pay court costs, not associate with known felons and pay restitution.” People v Cannon, 145 Mich App 100, 104 (1985).⁴

Requiring the defendant to have no contact with his parents was a valid condition of a delayed sentence where the defendant’s parents were the victims of defendant’s crime and the condition was “designed to protect the parents from being further victimized by defendant,” and “to ensure defendant’s willingness to be bound by reasonable restrictions upon his conduct which might have governed any grant of probation.” People v Coleman, 130 Mich App 639, 641 (1983).

The trial court did not err by imposing conditions during delayed sentencing that required the defendant “(1) to refrain from drinking alcoholic beverages; (2) to stay away from bars and taverns; and (3) to report each week to a probation officer” because the conditions were “reasonably well designed to assist the court in determining whether or not she would be eligible for probation when the six-month [delayed sentence] period ended.” People v Clyne, 36 Mich App 152, 153-155 (1971) (rejecting the defendant’s challenge that she was entitled to a summary hearing because the imposed conditions “actually placed her on a probationary status”).

Incarceration in jail is not a valid condition of a delayed sentence because “it is the precise type of punishment authorized by the Legislature for the offense,” and not a means by which the defendant could “prove his or her eligibility for probation or leniency.” Saenz, 173 Mich App at 409.

Note that MCL 771.3(10) states that “[i]f 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)],” and MCL 771.3(2)(a) permits the court to order imprisonment in the county jail. MCL 771.3(9) similarly permits the circuit court to “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)],” but that section applies only in cases in which “entry of judgment is deferred,” and unlike MCL 771.3(10), MCL 771.3(9) does not state that it also applies to cases in which sentencing is delayed.

B.Violation of Condition and Sentencing After Delay

A defendant generally does not have a right to a formal hearing on whether he or she violated a condition of a delayed sentencing arrangement. People v Salgat, 173 Mich App 742, 746 (1988).

The due process required at a sentencing hearing following a delay in sentencing is the same required at any sentencing hearing. See People v Saylor, 88 Mich App 270, 274-275 (1979) (holding defendant’s right to due process was not violated where a copy of the presentence investigation report (PSIR) was provided to his attorney, defendant and his attorney were allowed to respond to the information in the PSIR, and were able to present any other relevant information; the procedures that apply to probation revocation hearings do not apply in the context of delayed sentencing).

“The sentence ultimately imposed should be based upon all of the circumstances of the defendant’s background. Among the factors to be considered in sentencing is the defendant’s failure to comply with the conditions and restrictions imposed in conjunction with the sentence delay.” Salgat, 173 Mich App at 746. For a detailed discussion of sentencing considerations, see Section 5.3.

C.Court’s Sentencing Jurisdiction

“[T]he plain language of MCL 771.1(2) does not deprive a sentencing judge of jurisdiction if a defendant is not sentenced within one year after the imposition of a delayed sentence[.]” People v Smith, 496 Mich 133, 142-143 (2014), overruling People v Boynton, 185 Mich App 669 (1990); People v Dubis, 158 Mich App 504 (1987), People v Turner, 92 Mich App 485 (1979); and People v McLott, 70 Mich App 524 (1976) (overruling these cases “to the extent they hold that a court loses jurisdiction to sentence a defendant as a remedy for a violation of MCL 771.1(2)”). “After the one-year statutory limitation elapses, sentencing may no longer be delayed for the purpose of permitting a defendant the opportunity to prove that he is worthy of leniency, and the judge is required to sentence defendant as provided by law.” Smith, 496 Mich at 142.

D.Speedy Trial Clause Not Applicable

A defendant’s sentence, based on accurate information prepared in advance of the sentencing hearing for the purpose of fashioning an appropriate sentence, must be imposed “within a reasonably prompt time” after the defendant’s conviction by plea or verdict unless the court has delayed the defendant’s sentencing in a manner provided by law. MCR 6.425(D)(1). The Sixth Amendment’s Speedy Trial Clause “does not apply once a defendant has been found guilty at trial or has pleaded guilty to criminal charges,” and therefore does not “apply to the sentencing phase of a criminal prosecution[.]” Betterman v Montana, 578 US 437, 439-441 (2016) (holding “that the Clause does not apply to delayed sentencing”). However, “although the Speedy Trial Clause does not govern [inordinate delay in sentencing,] a defendant may have other recourse, including, in appropriate circumstances, tailored relief under the Due Process Clauses of the Fifth and Fourteenth Amendments.” Id. at 439.

E.Mandatory Supervision Fees and Minimum State Costs⁵

In cases involving delayed sentencing in the circuit court, supervision fees are generally required under MCL 771.1(3). The court may waive the supervision fee owed by a defendant if it finds the defendant indigent. MCL 771.1(5). The delayed sentence order must order the Department of Corrections to collect a supervision fee from the defendant as provided in MCL 771.1(3).

MCL 771.1(3) sets out the amount of the supervision fee, which depends on whether the defendant is subject to electronic monitoring. Unlike the supervision fee ordered when a defendant is sentenced to a probationary period that may be for as many as 60 months (MCL 771.3c(1)), the supervision fee ordered in cases of delayed sentencing can be for no more than 12 months. MCL 771.1(3). A defendant cannot be subject to more than one supervision fee at a time. Id. “If a supervision fee is ordered for a person for any month or months during which that person already is subject to a supervision fee, the court shall waive the fee having the shorter remaining duration.” Id.

In addition to a supervision fee, a defendant whose sentencing is delayed must pay the minimum state costs detailed in MCL 769.1j.⁶ MCL 769.1k(1)(a).

MCL 769.1k⁷ 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.

F.Offenses Reported to Secretary of State

A trial court may not require the Secretary of State to amend driving records when a conviction is dismissed following a guilty plea and delayed sentencing under MCL 771.1. In re McCann Driving Record, 314 Mich App 605, 614 (2016). Although MCL 257.732(1)(b) of the Michigan Vehicle Code “requires a trial court to forward abstracts to the Secretary of State following the dismissal of charges, . . . it does not command the Secretary of State to take specific action in response,” and MCL 257.732(22) prohibits a court from ordering the expunction of a Secretary of State record of a reportable offense that has been set aside or dismissed. McCann, 314 Mich App at 614.

See the Michigan Judicial Institute’s Traffic Benchbook, Chapter 1, for a detailed discussion of procedures for traffic offenses, including the trial court’s responsibility for forwarding conviction abstracts.