Chapter 2: Probation Violations
“It is the intent of the legislature that the granting of probation is a matter of grace requiring the agreement of the probationer to its granting and continuance.” MCL 771.4(1).
“Probation is a matter of grace, not of right, and the trial court has broad discretion in determining the conditions to impose as part of probation.” People v Breeding, 284 Mich App 471, 479-480 (2009). “Therefore, when a judge imposes probation, it is ‘revocable on the basis of a judge’s findings of fact at an informal hearing, and largely at the judge’s discretion.’” Id. at 480, quoting People v Harper, 479 Mich 599, 626 (2007). “[T]he scope of a probation violation hearing is limited and . . . a probationer’s rights at a probation violation hearing are not as broad as the rights afforded to a defendant in a criminal trial.” Breeding, 284 Mich App at 480.
“A convicted defendant has no vested right in the continuance of his probation if he violates its conditions.” People v Ritter, 186 Mich App 701, 707 (1991). “The probation statutes confer upon the sentencing court a broad range of discretionary power in handling all aspects of the probationary process.” Id. at 707-708. MCL 771.4 “must be construed to authorize the sentencing court to revoke a defendant’s probation, limited only by the requirements that the decision to revoke be based on violations which occur during the probationary period.” Ritter, 186 Mich App at 708.1 Note that MCL 771.4 was subsequently amended to further limit when probation revocation is appropriate; specifically, “[a]ll probation orders are revocable subject to the requirements of [MCL 771.4b, addressing technical probation violations], but revocation of probation, and subsequent incarceration, should be imposed only for repeated technical violations, for new criminal behavior, as otherwise allowed in [MCL 771.4b], or upon request of the probationer. MCL 771.4(2). See 2020 PA 397, effective April 1, 2021. Note that MCR 6.450 limits the discretion of a court when it allows a probationer to acknowledge a technical probation violation without a hearing by providing that “[t]he court may not impose a sentence of incarceration or revoke probation for acknowledging a technical probation violation[.]” MCR 6.450(B).2 See also People v Smith, ___ Mich App ___, ___ (2024) (violation of a no-contact order is nontechnical only when the order names a specific individual; violation of a no-contact order prohibiting contact with a broad class of persons is not a nontechnical violation).
“[A] judge who sentences a defendant to probation retains jurisdiction over the case in all subsequent proceedings, including revocation of probation.” People v Manser, 172 Mich App 485, 487 (1988). “‘The underlying policy is simply to insure that revocation will be considered by the judge who is most acquainted with the matter.’” Id. at 487, quoting People v Clemons (Alvin), 116 Mich App 601, 604 (1981).
“[V]iolation of probation is not a crime, and a ruling that probation has been violated is not a new conviction.” People v Kaczmarek, 464 Mich 478, 482 (2001). “‘If a judge finds that a probationer violated his probation by committing an offense, the probationer is neither burdened with a new conviction nor exposed to punishment other than that to which he was already exposed . . . .’” Id. at 483, quoting People v Johnson, 191 Mich App 222, 226 (1991). “Instead, revocation of probation simply clears the way for a resentencing on the original offense.” Kaczmarek, 464 Mich at 483.
“In [probation violation] proceedings, the focus is on whether one who has already been convicted of a crime violated a term of probation, and whether probation should be revoked.” Johnson, 191 Mich App at 225-226. “Because of the limited nature and scope of a probation violation hearing, as a practical matter the prosecutor may not present all the evidence bearing on the commission of the alleged offense.” Id. at 226. “The determination whether one committed an offense for the purpose of a new conviction should be made in a criminal trial, which is the intended forum for such a determination, and not in an informal, summary proceeding.” Id. “The principles of collateral estoppel . . . should not be permitted to preclude such a determination following a probation violation decision adverse to the people.” Id. Additionally, “further criminal proceedings [following a probation violation hearing] [do not] violate the Double Jeopardy Clause.” Id. at 226-227 (“‘Jeopardy’ within the meaning of the constitutional double jeopardy provision requires a criminal prosecution in a court of justice . . . [and] [a] probation violation hearing is not a criminal prosecution.”).
The Michigan Judicial Institute created the following Quick Reference Materials relevant to probation violations:
•Probation Violation Flowchart
•Arraignment Checklist
•Plea Checklist
•Contested Hearing Checklist
•Sentencing Checklist