8.10Restitution Ordered As a Condition of Probation, Parole, or Conditional Sentence

A.Felony Cases

“If the defendant is placed on probation or paroled or the court imposes a conditional sentence as provided in . . . the code of criminal procedure, . . . MCL 769.3, any restitution ordered under this section shall be a condition of that probation, parole, or sentence.”¹ MCL 780.766(11). See MCL 769.1a(11), the corresponding Code of Criminal Procedure provision applicable to felonies, misdemeanors, and ordinance violations; MCL 771.3(1)(e), which also requires an order of probation to contain a provision requiring the probationer to pay restitution to a victim of the probationer’s “course of conduct giving rise to [his or her] conviction or to the victim’s estate” under the Code of Criminal Procedure; and MCL 791.236(5), which also requires a parole order to contain a provision requiring the prisoner to “pay restitution [ordered under the CVRA, MCL 780.766 et seq., or the Code of Criminal Procedure, MCL 769.1a et seq.,²] to the victim of the prisoner’s crime or the victim’s estate” under the Department of Corrections Act.³

The sentencing court may not condition a grant of parole on the offender’s full or partial payment of restitution. People v Gosselin, 493 Mich 900 (2012) (citing People v Greenberg, 176 Mich App 296, 310-311 (1989), and holding that “[t]he trial court had no authority to impose the [requirement that the defendant pay one-third of her] restitution obligation as a condition of parole[]”). “The Department of Corrections has exclusive jurisdiction over paroles,” and although MCL 780.766 “provides that any restitution ordered shall be a condition of parole and that the parole board may revoke parole if the defendant fails to comply[,]” the sentencing court has no authority to make “payment of restitution a prerequisite for obtaining parole or early release.” Greenberg, 176 Mich App at 310-311.

1.Wage Assignment for Employed Defendant

“In each case in which payment of restitution is ordered as a condition of probation, the court shall order any employed defendant to make regularly scheduled restitution payments. If the defendant misses 2 or more regularly scheduled payments, the court shall order the defendant to execute a wage assignment to pay the restitution.” MCL 780.766(18). See also MCL 771.3(2)(f), which authorizes “[a]s a condition of probation, the court [to] require the probationer to . . . [a]gree to pay by wage assignment any restitution, assessment, fine, or cost imposed by the court.”⁴

2.Addressing Restitution When Ordering Early Discharge From Probation

Some probationers may be eligible for early discharge from probation under MCL 771.2.⁵ See also MCR 6.441.⁶ “[T]he probation department may notify the sentencing court that the probationer may be eligible for early discharge from probation.” MCL 771.2(3); MCR 6.441(B). If the sentencing court does not receive notice of the probationer’s eligibility for early discharge, the probationer may notify the sentencing court if the probationer has not violated probation for the past three months. MCL 771.2(3); MCR 6.441(B). If the prosecuting attorney objects to the probationer’s early discharge, the prosecuting attorney must file its objection in writing within 14 days of receiving notice of the matter. MCR 6.441(B). Nothing in MCL 771.2(3) prevents “the court from considering a probationer for early discharge from probation at the court’s discretion.” MCL 771.2(3). See also MCR 6.441(H).

In some cases, the early discharge can be ordered without a hearing. See MCL 771.2(5); MCR 6.441(D).

a.Early Discharge Without a Hearing.

If a probationer is eligible for early discharge from probation without a hearing under MCL 771.2(5), but has not yet fully paid the restitution ordered, “the court must consider the impact of early discharge on the victim and the payment of outstanding restitution.” MCL 771.2(5); MCR 6.441(C). If the probationer has made an effort in good faith to pay the restitution owed and if he or she is otherwise eligible, the court may grant early discharge. MCL 771.2(5).

Except as provided in MCR 6.441(E), the court must discharge a probationer without a hearing if the prosecutor does not timely object to the probationer’s early discharge, and after its review of the case under MCR 6.441(C), the court determines that the probationer

“(1) is eligible for early probation discharge;

(2) achieved all the rehabilitation goals of probation; and

(3) is not a specific, articulable, and ongoing risk of harm to a victim that can only be mitigated with continued probation supervision.” MCR 6.441(D).

The court may also keep the probationer on probation for the maximum term allowable solely for the purpose of continuing restitution payments. MCL 771.2(5); MCR 6.441(D).

b.Hearing Required for Early Discharge.

If the felony offense “involves a victim who has requested to receive notice under . . . MCL 780.768b, [MCL] 780.769, [MCL] 780.769a, [MCL] 780.770, [or MCL] 780.770a,” the sentencing court must hold a hearing before granting early discharge. MCL 771.2(7); MCR 6.441(E).

The sentencing court must hold a hearing after it has conducted its review of the case as instructed in MCR 6.441(C) if:

“(1) the prosecutor submits a timely objection, or

(2) a circumstance identified in MCL 771.2(7) is applicable . . . .”⁷ MCR 6.441(E).

The sentencing court must hold hearing before it grants a probationer an early discharge from probation when the probationer’s term of probation is for an eligible felony offense and the offense involves a victim who has requested notice of a probationer’s early discharge from probation. MCL 771.2(7); MCR 6.441(E). The prosecuting attorney must notify the victim of the date and time of the hearing, and if applicable, both the victim and the probationer must have an opportunity to be heard. MCL 771.2(8); MCR 6.441(E).

If the court must conduct a hearing before determining whether a probationer may be discharged early from probation and if the probationer still owes restitution, “the court must consider the impact of early discharge on the payment of outstanding restitution and may grant early discharge or retain the probationer on probation up to the maximum allowable probation term for the offense, with the sole condition of continuing restitution payments.” MCL 771.2(7).

c.Hearing When the Court Determines Early Discharge Is Not Warranted

The sentencing court must hold a hearing after it has conducted its review of the case as instructed in MCR 6.441(C) if:

“the court reviewed the case and does not grant an early discharge or retain the probationer on probation with the sole condition of continuing restitution payment.” MCR 6.441(E)(3).

In addition, if the court conducts a review as directed by MCL 771.2(5) and decides that early discharge from probation is not warranted, “the court must conduct a hearing to allow the probationer to present his or her case for an early discharge and find on the record any specific rehabilitation goal that has not yet been achieved or a specific, articulable, and ongoing risk of harm to a victim that can only be mitigated with continuing probation supervision.” MCL 771.2(6).

d.Hearing Outcome

After the hearing concludes, and the probationer has proved by a preponderance of the evidence the factors listed in MCR 6.441(F), the court must do one of two things:

•the court must grant the probationer early discharge from probation, or

•if applicable, the court must continue the probationer’s probation solely for the payment of restitution. MCR 6.441(F).

The factors in MCR 6.441(F) that must be proved by a preponderance of the evidence to merit early discharge or the continuation of probation for the sole purpose of paying restitution owed, are as follows. The probationer must prove that he or she:

“(1) is eligible for early probation discharge;

(2) achieved all the rehabilitation goals of probation; and

(3) is not a specific, articulable, and ongoing risk of harm to a victim that can only be mitigated with continued probation supervision.” MCR 6.441(F).

3.Review of Compliance with Restitution Order

a.Restitution as Condition of Probation

“The probation officer assigned to the case shall review the case not less than twice yearly to ensure that restitution is being paid as ordered. If the restitution was ordered to be made within a specific period of time, the probation officer assigned to the case shall review the case at the end of the specific period of time to determine if the restitution has been paid in full. The final review shall be conducted not less than 60 days before the probationary period expires. If the probation officer determines at any review that restitution is not being paid as ordered, the probation officer shall file a written report of the violation with the court on a form prescribed by the state court administrative office^[8] or shall petition the court for a probation violation. The report or petition shall include a statement of the amount of the arrearage and any reasons for the arrearage known by the probation officer. The probation officer shall immediately provide a copy of the report or petition to the prosecuting attorney. If a petition or motion is filed or other proceedings are initiated to enforce payment of restitution and the court determines that restitution is not being paid or has not been paid as ordered by the court, the court shall promptly take action necessary to compel compliance.” MCL 780.766(18). See also MCL 769.1a(15), the corresponding Code of Criminal Procedure provision applicable to felonies, misdemeanors, and ordinance violations.

b.Restitution as Condition of Parole

“In each case in which payment of restitution is ordered as a condition of parole, a parole officer assigned to the case shall review the case not less than twice yearly to ensure that restitution is being paid as ordered. The final review must be conducted not less than 60 days before the expiration of the parole period. If the parole officer determines that restitution is not being paid as ordered, the parole officer shall file a written report of the violation with the parole board on a form prescribed by the parole board. The report must include a statement of the amount of arrearage and any reasons for the arrearage known by the parole officer. The parole board shall immediately provide a copy of the report to the court, the prosecuting attorney, and the victim.” MCL 791.236(13).

4.Failure to Comply With Restitution Order

If restitution is not being paid or has not been paid as ordered,

•the court may revoke probation if the defendant has not made a good faith effort to comply with the order, see MCL 780.766(11) and MCL 769.1a(11).

•the parole board may revoke parole if the defendant has not made a good faith effort to comply with the order, see MCL 780.766(11), and MCL 769.1a(11).

•the court may modify the method of paying restitution if requested by the defendant and certain conditions are met, see MCL 780.766(12) and MCL 769.1a(12).⁹ See also MCL 771.3(1)(e), which includes as a condition of probation that “[a]n order for payment of restitution may be modified and shall be enforced as provided in [MCL 769.1a].”

•“the court may impose a payment alternative, such as a payment plan, modification of any existing payment plan, or waiver of part or all of the amount of money owed to the extent permitted by law” if the defendant has a manifest hardship,¹⁰ see MCR 6.425(D)(3)(b).

•the prosecuting attorney, victim, victim’s estate, or any other person named in the restitution order may enforce the restitution order “in the same manner as a judgment in a civil action or a lien.” See MCL 769.1a(13); MCL 780.766(13).¹¹

a.Revocation of Probation or Parole

“The court may revoke probation or impose imprisonment under the conditional sentence and the parole board may revoke parole if the defendant fails to comply with the order and if the defendant has not made a good faith effort to comply with the order. In determining whether to revoke probation or parole or impose imprisonment, the court or parole board shall 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.” MCL 780.766(11).¹² “Notwithstanding any other provision of this section, a defendant shall not be imprisoned, jailed, or incarcerated for a violation of probation or parole or otherwise for failure to pay restitution as ordered under this section unless the court or parole board determines that the defendant has the resources to pay the ordered restitution and has not made a good faith effort to do so.”¹³ MCL 780.766(14).¹⁴

MCR 6.425(D)(3)(a) also prohibits the court from sentencing a defendant to a term of incarceration or revoking a probation “for failure to comply with an order to pay money unless the court finds, on the record, that the defendant is able to comply with the order without manifest hardship and that the defendant has not made a good-faith effort to comply with the order.” “The court shall consider the following criteria in determining manifest hardship:

(i) Defendant’s employment status and history.

(ii) Defendant’s employability and earning ability.

(iii) The willfulness of the defendant’s failure to pay.

(iv) Defendant’s financial resources.

(v) Defendant’s basic living expenses including but not limited to food, shelter, clothing, necessary medical expenses, or child support.

(vi) Any other special circumstances that may have bearing on the defendant’s ability to pay.”¹⁵ MCR 6.425(D)(3)(c).

When “determining whether to revoke a defendant’s probation on the basis of manifest hardship or lack of a good faith effort to satisfy a restitution obligation,” MCL 769.1a(11), MCL 780.766(11), and MCR 6.425(D)(3)(c), “do not speak to any requirement that a defendant’s net income be considered in the trial court’s decision.” People v Spears-Everett, 329 Mich App 1, 16 (2019) (“declin[ing] defendant’s invitation to adopt a bright-line rule that requires a trial court to consider only net income,” and finding “the trial court [did not] err[] when it used [defendant’s] gross income, rather than net income, in determining her restitution payment schedule.”) (emphasis added).

b.Failure to Pay Must be Willful for Incarceration

In addition to violating the statutes governing restitution, “a sentence that exposes an offender to incarceration unless he [or she] pays restitution or some other fine violates the Equal Protection Clauses of [US Const, Am XIV] and [Const 1963, art 1, § 2] because it results in unequal punishments for offenders who have and do not have sufficient money. In accordance with the right to equal protection, [MCL 769.1a(14)¹⁶] prohibits incarceration as a consequence for failure to pay unless the failure was willful.” People v Collins, 239 Mich App 125, 135-136 (1999) (internal citations omitted). Similarly, “reward[ing] restitution payments with a suspension of jail time” also violates equal protection principles and the applicable statutory provisions. Id. at 136.

B.Juvenile Proceedings

“If the juvenile is placed on probation, any restitution ordered under this section shall be a condition of that probation.” MCL 780.794(11). See also MCL 712A.30(11), the corresponding Juvenile Code provision.¹⁷

“If the court imposes restitution as a condition of probation, the court shall require the juvenile to do either of the following as an additional condition of probation:

(a) Engage in community service or, with the victim’s consent, perform services for the victim.^[18]

(b) Seek and maintain paid employment and pay restitution to the victim from the earnings of that employment.” MCL 712A.18(8).

1.Wage Assignment for Employed Juvenile

“In each case in which payment of restitution is ordered as a condition of probation, the court shall order any employed juvenile to make regularly scheduled restitution payments. If the juvenile misses 2 or more regularly scheduled payments, the court shall order the juvenile to execute a wage assignment to pay the restitution.” MCL 780.794(18).

2.Review of Compliance with Restitution Order as Condition of Probation

“The juvenile caseworker or probation officer assigned to the case shall review the case not less than twice yearly to ensure that restitution is being paid as ordered. If the restitution was ordered to be made within a specific period of time, the juvenile caseworker or probation officer assigned to the case shall review the case at the end of the specific period of time to determine if the restitution has been paid in full. The final review shall be conducted not less than 60 days before the probationary period expires. If the juvenile caseworker or probation officer determines at any review the restitution is not being paid as ordered, the juvenile caseworker or probation officer shall file a written report of the violation with the court on a form prescribed by the state court administrative office^[19] or shall petition the court for a probation violation. The report or petition shall include a statement of the amount of the arrearage, and any reasons for the arrearage known by the juvenile caseworker or probation officer. The juvenile caseworker or probation officer shall immediately provide a copy of the report or petition to the prosecuting attorney. If a petition or motion is filed or other proceedings are initiated to enforce payment of restitution and the court determines that restitution is not being paid or has not been paid as ordered by the court, the court shall promptly take action necessary to compel compliance.” MCL 780.794(18). See also MCL 712A.30(18), the corresponding Juvenile Code provision.

3.Failure to Comply With Restitution Order

If restitution is not being paid or has not been paid as ordered,

•the court may revoke probation if the juvenile has not made a good faith effort to comply with the order, see MCL 780.794(11) and MCL 712A.30(11). See also MCL 712A.18(9), which provides for revocation of probation for nonpayment.

•the court may alter the terms and conditions of probation. See MCL 712A.18(9).

•the court may modify the method of paying restitution if requested by the juvenile and certain conditions are met, see MCL 780.794(12) and MCL 712A.30(12).²⁰

•the prosecuting attorney, victim, victim’s estate, or any other person named in the restitution order may file a civil suit to enforce the restitution order. See MCL 712A.30(13); MCL 780.794(13).²¹

The court may also “revoke or alter the terms of conditions of probation” if the juvenile intentionally refuses to perform required community service. See MCL 712A.18(9).

a.Revocation of Probation

“The court may revoke probation if the juvenile fails to comply with the order and if the juvenile has not made a good faith effort to comply with the order. In determining whether to revoke probation, the court shall consider the juvenile’s employment status, earning ability, and financial resources, the willfulness of the juvenile’s failure to pay, and any other special circumstances that may have a bearing on the juvenile’s ability to pay.” MCL 780.794(11). See also MCL 712A.30(11), the corresponding Juvenile Code provision; and MCL 712A.18(9), which provides for revocation of probation “[i]f the court finds that the juvenile is in intentional default of the payment of restitution” under the Juvenile Code.

b.Alter Terms and Conditions of Probation

“If the court finds that the juvenile is in intentional default of the payment of restitution, a court may . . . alter the terms and conditions of probation for nonpayment of restitution.” MCL 712A.18(9).

c.Limitation on Detaining or Imprisoning Juvenile for Nonpayment

“Notwithstanding any other provision of this section, a juvenile shall not be detained or imprisoned for a violation of probation or parole or otherwise for failure to pay restitution as ordered under this section unless the court determines that the juvenile has the resources to pay the ordered restitution and has not made a good faith effort to do so.” MCL 780.794(14). See also MCL 712A.30(14), the corresponding Juvenile Code provision.

C. Misdemeanor Cases

“If the defendant is placed on probation or the court imposes a conditional sentence as provided in . . . the code of criminal procedure, . . . MCL 769.3, any restitution ordered under this section shall be a condition of that probation or sentence.”²² MCL 780.826(11). See MCL 769.1a(11), which also contains substantially similar language for restitution ordered under the Code of Criminal Procedure; MCL 771.3(1)(e), which also requires the order of probation to contain a provision requiring the probationer to pay restitution to a victim of the probationer’s “course of conduct giving rise to [his or her] conviction or to the victim’s estate” under the Code of Criminal Procedure.²³

1.Wage Assignment for Employed Defendant

“In each case in which payment of restitution is ordered as a condition of probation, the court shall order any employed defendant to make regularly scheduled restitution payments. If the defendant misses 2 or more regularly scheduled payments, the court shall order the defendant to execute a wage assignment to pay the restitution.” MCL 780.826(15). See also MCL 771.3(2)(f), which authorizes “[a]s a condition of probation, the court [to] require the probationer to . . . [a]gree to pay by wage assignment any restitution, assessment, fine, or cost imposed by the court.”²⁴

2.Addressing Restitution When Ordering Early Discharge From Probation

Some probationers may be eligible for early discharge from probation under MCL 771.2.²⁵ In some cases, the early discharge can be ordered without a hearing. See MCL 771.2(5). However, if the offense is “a misdemeanor violation of . . . MCL 750.81, [MCL] 750.81a, [or MCL] 750.136b,” the sentencing court must hold a hearing before granting early discharge. MCL 771.2(7).

If a probationer is eligible for early discharge from probation without a hearing under MCL 771.2(5), but has not yet fully paid the restitution ordered, “the court must consider the impact of early discharge on the victim and the payment of outstanding restitution.” MCL 771.2(5). If the probationer has made an effort in good faith to pay the restitution owed and if he or she is otherwise eligible, the court may grant early discharge. Id. The court may also keep the probationer on probation for the maximum term allowable solely for the purpose of continuing restitution payments. Id.

If the court must conduct a hearing under MCL 771.2(7) before determining whether a probationer may be discharged early from probation and if the probationer still owes restitution, “the court must consider the impact of early discharge on the payment of outstanding restitution and may grant early discharge or retain the probationer on probation up to the maximum allowable probation term for the offense, with the sole condition of continuing restitution payments.” Id.

3.Review of Compliance with Restitution Order as Condition of Probation

“The probation officer assigned to the case shall review the case not less than twice yearly to ensure that restitution is being paid as ordered. If the restitution was ordered to be made within a specific period of time, the probation officer assigned to the case shall review the case at the end of the specific period of time to determine if the restitution has been paid in full. The final review shall be conducted not less than 60 days before the probationary period expires. If the probation officer determines at any review that restitution is not being paid as ordered, the probation officer shall file a written report of the violation with the court on a form prescribed by the state court administrative office^[26] or shall petition the court for a probation violation. The report or petition shall include a statement of the amount of the arrearage and any reasons for the arrearage known by the probation officer. The probation officer shall immediately provide a copy of the report or petition to the prosecuting attorney. If a petition or motion is filed or other proceedings are initiated to enforce payment of restitution and the court determines that restitution is not being paid or has not been paid as ordered by the court, the court shall promptly take action necessary to compel compliance.” MCL 780.826(15). See also MCL 769.1a(15), the corresponding Code of Criminal Procedure provision applicable to felonies, misdemeanors, and ordinance violations.

4.Failure to Comply with Restitution Order

If restitution is not being paid or has not been paid as ordered,

•the court may revoke probation if the defendant has not made a good faith effort to comply with the order, see MCL 780.826(11) and MCL 769.1a(11).

•the court may modify the method of paying restitution if requested by the defendant and certain conditions are met, see MCL 780.826(12) and MCL 769.1a(12).²⁷ See also MCL 771.3(1)(e), which includes as a condition of probation that “[a]n order for payment of restitution may be modified and shall be enforced as provided in [MCL 769.1a].”

•the prosecuting attorney, victim, victim’s estate, or any other person named in the restitution order may file a civil suit to enforce the restitution order. See MCL 769.1a(13); MCL 780.826(13).²⁸

a.Revocation of Probation

“The court may revoke probation or impose imprisonment under the conditional sentence if the defendant fails to comply with the order and if the defendant has not made a good faith effort to comply with the order. In determining whether to revoke probation or impose imprisonment, the court shall 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.” MCL 780.826(11). See also MCL 769.1a(11), the corresponding Code of Criminal Procedure provision applicable to felonies, misdemeanors, and ordinance violations.

b.Limitation on Imprisoning, Jailing, or Incarcerating Defendant for Nonpayment

“Notwithstanding any other provision of this section, a defendant shall not be imprisoned, jailed, or incarcerated for a violation of probation or otherwise for failure to pay restitution as ordered under this section unless the court determines that the defendant has the resources to pay the ordered restitution and has not made a good faith effort to do so.” MCL 780.826(14). See also MCL 769.1a(14), the corresponding Code of Criminal Procedure provision applicable to felonies, misdemeanors, and ordinance violations.

In addition to violating the statutes governing restitution, “a sentence that exposes an offender to incarceration unless he [or she] pays restitution or some other fine violates the Equal Protection Clauses of [US Const, Am XIV] and [Const 1963, art 1, § 2] because it results in unequal punishments for offenders who have and do not have sufficient money. In accordance with the right to equal protection [MCL 769.1a(14)²⁹] prohibits incarceration as a consequence for failure to pay unless the failure was willful.” People v Collins, 239 Mich App 125, 135-136 (1999) (internal citations omitted). Similarly, “reward[ing] restitution payments with a suspension of jail time” also violates equal protection principles and the applicable statutory provisions. Id. at 136.