6.19Fines, Costs, Assessments, and Restitution1
MCL 769.1k provides a general statutory basis for a court’s authority to impose specified monetary penalties and civil remedies2 when sentencing a defendant and to collect the amounts owed at any time.
Courts have general authority to impose “any fine authorized by the statute for a violation of which the defendant entered a plea of guilty or nolo contendere or the court determined that the defendant was guilty.” MCL 769.1k(1)(b)(i).3 Specific authority to impose a fine, and the maximum amount of that fine, is often included in the language of the applicable penal statute.
“Subject to MCL 769.5(3), if a statute provides that an offense is punishable by imprisonment and a fine, the court may impose imprisonment without the fine or the fine without imprisonment.” MCL 769.5(1). “Subject to MCL 769.5(3), if a statute provides that an offense is punishable by fine or imprisonment, the court may impose both the fine and imprisonment in its discretion.” MCL 769.5(2). MCL 769.5(3) creates a rebuttable presumption in favor of a nonjail or nonprobation sentence for individuals convicted of a misdemeanor (other than a serious misdemeanor).
“[U]nder MCL 769.5(4), a court imposing a sentence for an ordinary misdemeanor conviction remains free to depart from the presumption in MCL 769.5(4) ‘if the court finds reasonable grounds for the departure and states on the record the grounds for the departure.’” People of the City of Auburn Hills v Mason, ___ Mich App ___, ___ (2024), quoting MCL 769.5(4). “When reviewing a sentence that constitutes a departure from the recommended minimum guidelines range, the key test is whether the sentence is proportionate to the seriousness of the matter, not whether it departs from or adheres to the guidelines’ recommended range.” Mason, ___ Mich App at ___ (cleaned up).“The pertinent question is not whether defendant’s sentence departed from the rebuttable presumption that a non-jail or non-probation sentence is a proportionate sentence for an ordinary misdemeanor.” Id. at ___. “Instead, the question is whether the sentence is proportionate to the seriousness of the circumstances surrounding the offense and the offender.” Id. at ___ (quotation marks and citation omitted). Here, “the [district] court did not adequately justify the imposed sentence,” because it “did not consider the circumstances of the offense and did not explain how its departure sentence was more proportionate than a different sentence would have been.” Id. at ___.
See Section 6.4(A) for a discussion of misdemeanor sentencing.
The court may require a defendant to pay by wage assignment any fine imposed under MCL 769.1k, and the court may provide that any fine imposed under MCL 769.1k be collected at any time. MCL 769.1k(4) and MCL 769.1k(5).
MCL 769.1k(1)(b)(ii) provides that, at the time of sentencing or a delay in sentencing or entry of a deferred judgment of guilt, a court may impose “[a]ny cost authorized by the statute for a violation of which the defendant entered a plea of guilty or nolo contendere or the court determined that the defendant was guilty.” Effective October 17, 2014, 2014 PA 352 amended MCL 769.1k to add MCL 769.1k(1)(b)(iii), which provides for the imposition of “any cost reasonably related to the actual costs incurred by the trial court[.]”4 The amendments effectuated by 2014 PA 352 “appl[y] to all fines, costs, and assessments ordered or assessed under . . . MCL 769.1k[] before June 18, 2014, and after [October 17, 2014].” 2014 PA 352, enacting section 1 (emphasis supplied). 2014 PA 352 amended MCL 769.1k5 in response to the Michigan Supreme Court’s holding in People v Cunningham (Cunningham II), 496 Mich 145 (2014), rev’g 301 Mich App 218 (2013) and overruling People v Sanders (Robert) (After Remand), 298 Mich App 105 (2012), and People v Sanders (Robert), 296 Mich App 710 (2012).6 In Cunningham II, the Court held that MCL 769.1k(1)(b)— which, at the time, provided for the imposition of “[a]ny cost in addition to the minimum state cost”—did “not provide courts with the independent authority to impose ‘any cost[;]’” rather, it “provide[d] courts with the authority to impose only those costs that the Legislature has separately authorized by statute.” Cunningham II, 496 Mich at 147, 158 (concluding that “[t]he circuit court erred when it relied on [former] MCL 769.1k(1)(b)(ii) as independent authority to impose $1,000 in court costs”).
“MCL 769.1k(1)(b)(iii)[7] independently authorizes the imposition of costs in addition to those costs authorized by the statute for the sentencing offense,” and “[a] trial court possessed the authority, under MCL 769.1k, as amended by 2014 PA 352, to order defendant to pay court costs[.]” People v Konopka, 309 Mich App 345, 350, 358 (2015). “However, although the costs imposed . . . need not be separately calculated, . . . the trial court [must] . . . establish a factual basis[]” demonstrating that “the court costs imposed [are] ‘reasonably related to the actual costs incurred by the trial court[.]’” Konopka, 309 Mich App at 359, quoting MCL 769.1k(1)(b)(iii). The imposition of court costs under MCL 769.1k(1)(b)(iii) is a tax, rather than a governmental fee, and it must therefore comply with the Distinct-Statement Clause and the separation-of-powers doctrine. People v Cameron, 319 Mich App 215, 236 (2017). “[A]lthough it imposes a tax, MCL 769.1k(1)(b)(iii) is not unconstitutional[.]” Cameron, 319 Mich App at 218. In People v Johnson, 336 Mich App 688, 691 (2021), the defendant brought a facial challenge to MCL 769.1k(1)(b)(iii), arguing that it “deprives criminal defendants of their due-process right to an impartial decision-maker and violates separation-of-powers principles.” The Court held that MCL 769.1k(1)(b)(iii) is not facially unconstitutional. Johnson, 336 Mich App at 691 (leaving “open the question whether a successful as-applied challenge could be made”).8
MCL 769.34(6) addresses the sentencing guidelines and the duties of the court when sentencing, and it generally authorizes the court to order court costs (“As part of the sentence, the court may also order the defendant to pay any combination of a fine, costs, or applicable assessments.”). However, “as with MCL 769.1k, MCL 769.34(6) allows courts to impose only those costs or fines that the Legislature has separately authorized by statute” and “does not provide courts with the independent authority to impose any fine or cost.” Cunningham II, 496 Mich at 158 n 11.
Article 7 of the PHC specifically authorizes the imposition of certain costs. See, e.g., MCL 333.7401c(6) (response activity costs) and MCL 333.7403a(6) (costs of screening, assessment, and rehabilitative services). For a more complete listing of statutes specifically authorizing the imposition of costs, see the Michigan Judicial Institute’s tables on imposition of costs.
Further, a defendant may be ordered to pay any additional costs incurred to compel his or her attendance. MCL 769.1k(2). Costs under MCL 769.1k(2) can include the cost of a GPS tether device since “it is a device that can be used to compel a defendant’s appearance,” but in order to require a defendant “to bear the cost of a GPS tether,” there must “be evidence demonstrating that the GPS tether was imposed for the purpose of securing a defendant’s appearance.” People v Godfrey, ___ Mich App ___, ___ (2023). In addition, MCL 769.1k(4) authorizes a court to order that a defendant pay by wage assignment any of the costs authorized in MCL 769.1k(1). A court may provide for the collection of costs imposed under MCL 769.1k at any time. MCL 769.1k(5).
“A defendant must not be imprisoned, jailed, or incarcerated for the nonpayment of costs ordered under [MCL 769.1k] unless the court determines that the defendant has the resources to pay the ordered costs and has not made a good-faith effort to do so.” MCL 769.1k(10).
MCL 769.1k(1)(a) expressly requires a court to “impose the minimum state costs as set forth in [MCL 769.1j].” MCL 769.1j conditions the imposition of minimum state costs on whether a defendant is ordered to pay other fines, costs, or assessments. If a defendant is ordered to pay any combination of a fine, costs, or applicable assessments, the court must order the defendant to pay a minimum state cost of $68.00 for each felony conviction, or $50 for each misdemeanor conviction or ordinance violation. MCL 769.1j(1). The costs imposed under MCL 769.1j(1)(a) constitute a tax, and this tax does not violate the separation of powers requirement under Const 1963, art 3, § 2 or the requirement of Const 1963, art 4, § 32 that “[e]very law which imposes, continues or revives a tax shall distinctly state the tax.” People v Shenoskey, 320 Mich App 80, 84 (2017) (applying the analysis of MCL 769.1k(1)(b)(iii) in People v Cameron, 319 Mich App 215 (2017) to MCL 769.1j(1)(a) because the statutes are “closely related”).
Further, MCL 769.1k(4) authorizes a court to order that a defendant pay by wage assignment the minimum state costs authorized in MCL 769.1k(1). A court may provide for the collection of minimum state costs imposed under MCL 769.1k at any time. See MCL 769.1k(5).
Whenever an individual is charged with a crime or ordinance violation and the charge “is resolved by conviction, by assignment of the defendant to youthful trainee status, by a delayed sentence or deferred entry of judgment of guilt, or in another way that is not an acquittal or unconditional dismissal,” the court must order the individual to pay a crime victim assessment ($130 for felony offenses; $75 for misdemeanor offenses/ordinance violations), as a condition of probation or parole. MCL 780.905(1)-(2). In contrast to the minimum state cost, which must be ordered for each conviction arising from a single case, only one crime victim assessment per case may be ordered, even when the case involves multiple offenses. MCL 780.905(2).
MCL 769.1k provides a court with general authority to impose “[a]ny assessment authorized by law” on a defendant at the time a defendant is sentenced, at the time a defendant’s sentence is delayed, or at the time entry of an adjudication of guilt is deferred. MCL 769.1k(1)(b)(v). MCL 769.1k(4) authorizes a court to order that a defendant pay by wage assignment an assessment imposed pursuant to MCL 769.1k(1)(b)(v). A court may provide for the collection of any assessment imposed under MCL 769.1k(1) at any time. MCL 769.1k(5).
E.Restitution9
Restitution is mandatory for an offender convicted of a felony, misdemeanor, or ordinance violation. MCL 769.1a(2); MCL 780.766(2); MCL 780.794(2); MCL 780.826(2). Restitution is also mandatory “[f]or an offense that is resolved by assignment of the defendant to youthful trainee status, by a delayed sentence or deferred judgment of guilt, or in another way that is not an acquittal or unconditional dismissal[.]” MCL 780.766(2); MCL 780.826(2). See also MCL 780.794(2), which also requires the court to order restitution “[f]or an offense that is resolved informally by means of a consent calendar diversion or by another informal method that does not result in a dispositional hearing[.]”
At sentencing, the court is required to “order the dollar amount of restitution that the defendant must pay to make full restitution[.]” MCR 6.425(D)(1)(f); MCR 6.610(G)(1)(e). Disputes over the proper amount or type of restitution must be resolved by the court using a preponderance of the evidence standard; the prosecution bears the burden of proving the amount of the loss. MCR 6.425(D)(2)(b); MCR 6.610(G)(1)(e).
Restitution orders may be amended following the procedure outlined in MCR 6.430.
1 See the Michigan Judicial Institute’s Criminal Proceedings Benchbook, Vol. 2, Chapter 8, for detailed information about fines, costs, and assessments. See the Michigan Judicial Institute’s Crime Victim Rights Benchbook, Chapter 8, for detailed information about restitution.
2 See People v Konopka, 309 Mich App 345, 373 (2015) (holding that “the [court] costs provision of MCL 769.1k(1)(b)(iii) is not so punitive[]” to “negate[] the Legislature’s civil intent[]” and is therefore a civil remedy).
3 Former MCL 769.1k(1)(b)(i) provided simply for the imposition of “[a]ny fine.” However, in People v Cunningham (Cunningham II), 496 Mich 145, 158 n 10 (2014) (reversing 301 Mich App 218 (2013)), the Michigan Supreme Court held that “interpreting MCL 769.1k(1)(b)(i) as providing courts with the independent authority to impose ‘any fine’ would . . . raise constitutional concerns, as ‘the ultimate authority to provide for penalties for criminal offenses is constitutionally vested in the Legislature.’” (Citation omitted.) Effective October 17, 2014, 2014 PA 352 amended MCL 769.1k(1)(b)(i) to require that any fine imposed be “authorized by the [applicable penal] statute[.]”
4 This provision expires on December 31, 2026. See MCL 769.1k(1)(b)(iii).
5 The amended version of MCL 769.1k does not violate a defendant’s due process or equal protection rights, nor does it violate the constitutional prohibition on ex post facto punishments or the principle of separation of powers. People v Konopka, 309 Mich App 345, 365, 367-70, 376 (2015).
6 In Sanders (Robert), 296 Mich App at 715, the Court of Appeals held that “a trial court may impose a generally reasonable amount of court costs under MCL 769.1k(1)(b)(ii) without the necessity of separately calculating the costs involved in the particular case,” but remanded for a hearing “to establish the factual basis for the [trial court’s] use of [a] $1,000 [court costs] figure[.]” After remand, the Court of Appeals held that the trial court “establish[ed] a sufficient factual basis to conclude that $1,000 in court costs under MCL 769.1k(1)(b)(ii) [was] a reasonable amount in a felony case conducted in [that court,]” based on financial data demonstrating that “the average cost of handling a felony case was, conservatively, $2,237.55 a case and, potentially, . . . as much as $4,846 each.” Sanders (Robert) (After Remand), 298 Mich App at 107-108. Similarly, in Cunningham (After Remand), 301 Mich App at 220, the Court of Appeals affirmed the trial court’s imposition of $1,000 in “court costs” under the general authority of MCL 769.1k(1)(b)(ii), holding that “a sentencing court may consider overhead costs when determining the reasonableness of a court-costs figure.”
However, in Cunningham II, 496 Mich at 147, the Michigan Supreme Court held that a sentencing court may not “rel[y] on MCL 769.1k(1)(b)(ii) as independent authority to impose . . . court costs[.]” Accordingly, the Court reversed Cunningham (After Remand), 301 Mich App 218, and overruled Sanders (Robert), 296 Mich App 710, and Sanders (Robert) (After Remand), 298 Mich App 105 (as well as any “other decisions of the Court of Appeals [that] are consistent with Sanders, and inconsistent with [Cunningham II.]” Cunningham II, 496 Mich at 159 n 13.
7 This costs provision is a civil remedy. See People v Konopka, 309 Mich App 345, 373 (2015).
8 For a detailed discussion of the categorization of MCL 769.1k(1)(b)(iii) as a tax, the application of the Distinct-Statement Clause and separation-of-powers, and the facial challenge to MCL 769.1k(1)(b)(iii), see the Michigan Judicial Institute’s Criminal Proceedings Benchbook, Vol 2, Chapter 8.
9 For detailed information on restitution, see the Michigan Judicial Institute’s Crime Victim Rights Benchbook, Chapter 8.