1.4Probation and Delayed Sentencing
MCL 771.1(1) permits the court to place the defendant on probation:
“In all prosecutions for felonies, misdemeanors, or ordinance violations other than murder, treason, criminal sexual conduct in the first or third degree, armed robbery, or major controlled substance offenses, if the defendant has been found guilty upon verdict or plea[1] and the court determines that the defendant is not likely again to engage in an offensive or criminal course of conduct and that the public good does not require that the defendant suffer the penalty imposed by law, the court may place the defendant on probation under the charge and supervision of a probation officer.” MCL 771.1(1).
“[A] defendant may decline a sentence of probation and instead seek a sentence of incarceration.” People v Bensch, 328 Mich App 1, 13 (2019).
If the defendant is placed on probation, “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). “When sentencing is delayed, the court shall enter an order stating the reason for the delay upon the court's records. The delay in passing sentence does not deprive the court of jurisdiction to sentence the defendant at any time during the period of delay.” Id.
“[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 (Ryan), 496 Mich 133, 143 (2014).2 Rather, “[a]fter 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 [or she] is worthy of leniency, and the judge is required to sentence [the] defendant as provided by law.” Id. at 142.
Committee Tip: Note that the MVC requires convictions to be abstracted as required by MCL 257.732. MCL 257.8a defines conviction to include “[a] final conviction, the payment of a fine, a plea of guilty or nolo contendere if accepted by the court, or a finding of guilt for a criminal law violation or a juvenile adjudication, probate court disposition, or juvenile disposition for a violation that if committed by an adult would be a crime, regardless of whether the penalty is rebated or suspended.” (Emphasis added.) See also People v McCann, 314 Mich App 605, 613 (2016) (noting that “[a]lthough a trial judge has discretion to delay sentencing[,] . . . the [MVC] regards [a guilty] plea . . . as a conviction[]”). Abstracting requirements are not mentioned in MCL 771.1, and thus, do not appear to be implicated by that statute. Accordingly, a court should send timely abstracts to the Secretary of State for convictions under the MVC, regardless of whether probation or a delayed sentence has been ordered. See Section 1.41 for abstracting requirements in cases involving MVC violations.
“[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;]” although MCL 257.732(1)(b) of the MVC “requires a trial court to forward abstracts to the Secretary of State following the dismissal of charges, . . . it does not command the secretary 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 (citations omitted).
For more information on sentencing, see the Michigan Judicial Institute’s Criminal Proceedings Benchbook, Vol. 2. For more information on probation, see the Michigan Judicial Institute’s Criminal Proceedings Benchbook, Vol. 3, Chapter 2.