A sentencing court has discretion to impose a conditional sentence when a person is convicted of an offense that is punishable by a fine or imprisonment, or both. MCL 769.3(1). Specifically, “the court may impose a conditional sentence and order the person to pay a fine, with or without the costs of prosecution, and restitution as provided under [MCL 769.1a(11) or the Crime Victim’s Rights Act, MCL 780.751 et seq.], within a limited time stated in the sentence and, in default of payment, sentence the person as provided by law.” MCL 769.3(1). See also MCL 769.1a(11); MCL 780.766(11); MCL 780.826(11).
“Except for a person who is convicted of criminal sexual conduct in the first or third degree, the court may also place the offender on probation with the condition that the offender pay a fine, costs, damages, restitution, or any combination in installments with any limited time and may, upon default in any of those payments, impose sentence as provided by law.” MCL 769.3(2).
The court may order imprisonment under the conditional sentence (even where the defendant is placed on probation) if the offender fails to comply with the restitution order and if he or she has failed to make a good faith effort at compliance with the order. MCL 769.1a(11). When determining whether to impose imprisonment, the court must “consider the defendant’s employment status, earning ability, and financial resources, the willfulness of the defendant’s failure to pay, and any other special circumstances that may have a bearing on the defendant’s ability to pay.” Id.1 See also MCL 780.766(11); MCL 780.826(11).
1 Before sentencing a defendant to a term of incarceration, or revoking probation, for failure to comply with an order to pay money, the court must make a finding that the defendant is able to comply with the order without manifest hardship and that he or she has not made a good-faith effort to comply. MCR 6.425(D)(3). See Section 8.4 for discussion of MCR 6.425(D)(3) and a defendant’s ability to pay court-ordered financial obligations.