8.2Statutory Authority to Impose Fines, Costs, and Assessments
“[C]ourts may impose costs in criminal cases only where such costs are authorized by statute.” People v Cunningham (Cunningham II), 496 Mich 145, 149 (2014).
MCL 769.1k1 provides a general statutory basis for a court’s authority to impose fines and costs. Under MCL 769.1k(1)(a), the court must impose the minimum state costs as set out in MCL 769.1j2 at the time the defendant is sentenced, at the time the defendant’s sentence is delayed, or at the time entry of judgment is statutorily deferred. MCL 769.1k(1)(a). Under MCL 769.1k(1)(b) and MCL 769.1k(2), the court may also 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).
•“Any 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.” MCL 769.1k(1)(b)(ii).
•“[A]ny cost reasonably related to the actual costs incurred by the trial court without separately calculating those costs involved in the particular case,[3] including, but not limited to, the following:
(A) Salaries and benefits for relevant court personnel.
(B) Goods and services necessary for the operation of the court.
(C) Necessary expenses for the operation and maintenance of court buildings and facilities.” MCL 769.1k(1)(b)(iii).4
•“The expenses of providing legal assistance to the defendant.” MCL 769.1k(1)(b)(iv).
•“Any assessment authorized by law.” MCL 769.1k(1)(b)(v).5
•“Reimbursement under [MCL 769.1f]. MCL 769.1k(1)(b)(vi).6
•“[A]ny additional costs incurred in compelling the defendant’s appearance.” MCL 769.1k(2).
See also MCL 769.34(6) (“As part of the sentence, the court may also order the defendant to pay any combination of a fine, costs, or applicable assessments.”). “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.
A.Information Must be Provided to Defendant
“The court shall make available to a defendant information about any fine, cost, or assessment imposed under [MCL 769.1k(1)], including information about any cost imposed under [MCL 769.1k(1)(b)(iii)]. However, the information is not required to include the calculation of the costs involved in a particular case.” MCL 769.1k(7).
The authorized fines, costs, and assessments set out in MCL 769.1k(1) and MCL 769.1k(2) “apply even if the defendant is placed on probation, probation is revoked, or the defendant is discharged from probation.” MCL 769.1k(3); see also People v Cunningham (Cunningham II), 496 Mich 145, 152 (2014).
Ordering the payment of fines, costs, and assessments as a condition of probation is discussed in Section 8.9. Probation as a sentence in general is discussed in Chapter 9.
C.Scope of Costs Incurred in Compelling Appearance
“Under MCL 769.1k(2), the court may order the defendant to pay any additional costs incurred in compelling the defendant’s appearance.” People v Godfrey, ___ Mich App ___, ___ (2023) (quotation marks omitted). The Court concluded that MCL 769.1k(2) permits imposition of fees related to a defendant’s GPS tether because “[a] GPS tether device is a tool used by courts to remotely surveil defendants,” and “[g]iven this capability, a tether may also secure a criminal defendant’s appearance at later court hearings.” Godfrey, ___ Mich App at ___. In order to require “a defendant to bear the cost of a GPS tether” under MCL 769.1k(2), “there must also be evidence demonstrating that the GPS tether was imposed for the purpose of securing a defendant’s appearance.” Godfrey, ___ Mich App at ___ (concluding the trial court did not err by imposing tether-related fees in defendant’s sentence where there was sufficient evidence “demonstrating the GPS tether was to secure defendant’s appearance at later court hearings” based on the fact that the tether was ordered in the context of bond sufficient to guarantee the appearance of defendant).
MCL 769.3(1) provides:
“If a person is convicted of an offense punishable by a fine or imprisonment, or both, 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] or the crime victim’s rights act, . . . MCL 780.751 to [MCL] 780.834, within a limited time stated in the sentence and, in default of payment, sentence the person as provided by law.”
Additionally, except for defendants convicted of first- or third-degree criminal sexual conduct, MCL 769.3(2) authorizes the court to sentence the defendant to probation, conditioned on the probationer’s payment of costs, among other things. MCL 769.3(2).7
1 Effective October 17, 2014, 2014 PA 352 amended MCL 769.1k in response to the Michigan Supreme Court’s holding in Cunningham II, 496 Mich at 145. In Cunningham II, the Court held that MCL 769.1k(1)(b)(ii)— 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, 158-159 (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”). 2014 PA 352 added MCL 769.1k(1)(b)(iii) to provide for the imposition of “any cost reasonably related to the actual costs incurred by the trial court[.]”
2 See Section 8.11 for discussion of minimum state costs.
3 Court costs may be awarded under MCL 769.1k(1)(b)(iii), as amended by 2014 PA 352, effective October 17, 2014. People v Konopka (On Remand), 309 Mich App 345, 357 (2015). See Section 8.7 for additional discussion of 2014 PA 352 and the imposition of “court costs.”
4 MCL 769.1k(1)(b)(iii) is applicable “[u]ntil December 31, 2026[.]” Courts must annually report to the State Court Administrative Office (SCAO) certain information regarding the imposition and collection of costs under MCL 769.1k(1)(b)(iii). MCL 769.1k(8).
5 For example, under MCL 780.905, the court must “order each person charged with an offense that is a felony, misdemeanor, or ordinance violation that is resolved by conviction, assignment of the defendant to youthful trainee status, a delayed sentence or deferred entry of judgment of guilt, or in another way that is not an acquittal or unconditional dismissal, to pay an assessment” of $130.00 if the offense is a felony or $75.00 if the offense is a misdemeanor or ordinance violation. MCL 780.905(1)(a)-(b). In contrast to the minimum state cost, which may be ordered for each conviction arising from a single case, only one crime victim assessment per criminal case may be ordered, even when the case involves multiple offenses. MCL 780.905(2). See also the SCAO Crime Victim Assessment and Minimum State Cost Charts.
6 See Section 8.10 for additional discussion of reimbursement under MCL 769.1f.
7 Note, however, that 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)(a). See Section 8.4 for discussion of MCR 6.425(D)(3) and a defendant’s ability to pay court-ordered financial obligations.