6.8Deferral

A.Taking Plea Under Advisement

A court may take a defendant’s felony plea or plea agreement “under advisement.” MCR 6.302(C)(4)(d); MCR 6.302(F). “A verbatim record must be made of the plea proceeding.” MCR 6.302(F). See also People v Eloby (After Remand), 215 Mich App 472, 474 (1996) (noting that, under MCR 6.302(C), “[w]hen a prosecutor and a defendant agree to a specific disposition in exchange for a guilty plea or a plea of nolo contendere, the trial court can either accept or reject the plea, take the plea under advisement, or defer action until the court has had an opportunity to consider the presentence report[]”) (additional citation omitted). No similar provision exists in the court rules concerning offenses over which the district court has jurisdiction.¹

MCL 257.732(21), explicitly prohibits courts from taking under advisement any traffic offense that requires reporting to the Secretary of State:

“Notwithstanding any other law of this state, a court shall not take under advisement an offense committed by an individual while operating a motor vehicle for which [the Michigan Vehicle Code] requires a conviction or civil infraction determination to be reported to the secretary of state. A conviction or civil infraction determination that is the subject of this subsection must not be masked, delayed, diverted, suspended, or suppressed by a court. Upon a conviction or civil infraction determination, the conviction or civil infraction determination must immediately be reported to the secretary of state in accordance with this section.”

B.Deferred Adjudication Provisions and Problem-Solving Courts

There are several specific statutes authorizing a court to defer sentencing a defendant for a plea-based conviction provided the defendant complies with any terms or conditions on which the period of deferment is based.

In addition to the provisions discussed below, discharge and dismissal of proceedings may be available in a state-certified treatment court², which includes a drug treatment court, see MCL 600.1060 et seq.; a mental health court, see MCL 600.1090 et seq.; a juvenile mental health court, see MCL 600.1099b et seq.; or a veterans treatment court, see MCL 600.1200 et seq.³ A case may be completely transferred from a court of original jurisdiction to a state-certified treatment court, prior to or after adjudication, if those courts—with the approval of the chief judge and assigned judge of each court, a prosecuting attorney from each court, and the defendant—have executed a memorandum of understanding as provided in MCL 600.1088(1)(a)-(e). MCL 600.1088(1).

Unless a memorandum of understanding provides otherwise, the original court of jurisdiction maintains jurisdiction over the participant in a drug treatment court, mental health court, or a veteran’s treatment court until final disposition of the case, but not longer than the probation period established under MCL 771.2. MCL 600.1070(2); MCL 600.1095(2); MCL 600.1206(2).

Unless a memorandum of understanding provides otherwise, the original court of jurisdiction maintains jurisdiction over a participant in a juvenile mental health court until final disposition of the case. MCL 600.1099h(b). The court may also “receive jurisdiction over the juvenile’s parents or guardians under . . . MCL 712A.6, in order to assist in ensuring the juvenile’s continued participation and successful completion of the juvenile mental health court and may issue and enforce any appropriate and necessary order regarding the parent or guardian.” MCL 600.1099h(b).

For a thorough discussion of problem-solving courts and deferred adjudication, see the Michigan Judicial Institute’s Criminal Proceedings Benchbook, Vol. 2, Chapter 9. For more information on problem-solving courts in general, see the One Court of Justice website.

Other statutes authorizing deferred adjudication include the following:

•MCL 333.7411, Controlled Substances Act

• MCL 333.7411(1)⁴ permits a sentencing court to defer further proceedings on a first-time offender’s conviction, whether by guilty plea or guilty verdict, for possession or use of specified controlled substances for a period of up to one year. Included in the statutory offenses listed in MCL 333.7411 for which deferment is authorized are several misdemeanor offenses punishable by as much as one year and as little as 90 days. See e.g., MCL 333.7403(2)(c) and MCL 333.7404(2)(a)-(d).

•When a court opts to defer adjudication under MCL 333.7411(1), no judgment of guilt is entered on the record, and the offender must consent to the deferment. When the offender is placed on probation in lieu of immediate sentencing, the terms and conditions of his or her probation must include payment of a probation supervision fee described in MCL 771.3c. Participation in a drug treatment court is a term or condition that may be imposed on a defendant under § 7411 deferral.

•If the offender violates a term or condition of probation, “the court may enter an adjudication of guilt and proceed as otherwise provided.” MCL 333.7411(1).

•When an offender fulfills the terms and conditions of his or her period of deferment, the court must discharge the offender and dismiss the offender’s case without an adjudication of guilt. Except as otherwise provided by law, “[d]ischarge and dismissal under [MCL 333.7411] . . . is not a conviction for purposes of [MCL 333.7411] or for purposes of disqualifications or disabilities imposed by law upon conviction of a crime, including the additional penalties imposed for second or subsequent convictions under [MCL 333.]7413.” MCL 333.7411(1). A person is entitled to only one discharge and dismissal under MCL 333.7411. MCL 333.7411(1).

•All court proceedings under MCL 333.7411 are open to the public. MCL 333.7411(2). “[I]f the record of proceedings . . . is deferred under [MCL 333.7411], the record of proceedings during the period of deferral shall be closed to public inspection.” MCL 333.7411(2). However, unless a judgment of guilt is entered, the Department of State Police must retain a nonpublic record of the arrest, court proceedings, and disposition of the charge. MCL 333.7411(3). This nonpublic record is open, for limited purposes as set out in MCL 333.7411(3)(a)-(c), to courts, law enforcement personnel, prosecuting attorneys, the Department of Corrections, and the Department of Health and Human Services. MCL 333.7411(3).

•MCL 750.350a(4), Parental Kidnapping Act

•Deferment is available to a parent convicted by plea or verdict if the parent has no previous kidnapping-related convictions.

•Without entering an adjudication of guilt and with the parent’s consent, the court may defer further proceedings and place the parent on probation pursuant to lawful terms and conditions.

•Participation in a drug treatment court may be made a term or condition of deferral.

•If the parent violates a term or condition of probation, the court may enter an adjudication of guilt and proceed as otherwise authorized.

•If the parent fulfills the terms and conditions of probation, the court must discharge the parent from probation and dismiss the proceedings against him or her.

•Discharge and dismissal is without an adjudication of guilt and is not a conviction for purposes of disqualification or disabilities imposed by law for conviction of a crime, including any additional penalties imposed for second or subsequent convictions.

•A parent is entitled to only one discharge and dismissal under MCL 750.350a. MCL 750.350a(4).

•All court proceedings under MCL 750.350a are open to the public. MCL 750.350a(5). “[I]f the record of proceedings . . . is deferred under [MCL 750.350a], the record of proceedings during the period of deferral shall be closed to public inspection.” MCL 750.350a(5). However, unless a judgment of guilt is entered, the Department of State Police must retain a nonpublic record of the arrest, court proceedings, and disposition of the charge. MCL 750.350a(6). This nonpublic record is open, for limited purposes as set out in MCL 750.350a(6)(a)-(c), to courts, law enforcement personnel, prosecuting attorneys, the Department of Corrections, and the Department of Health and Human Services. MCL 750.350a(6).

•MCL 750.451c, Prostitution Offenses Committed By Human Trafficking Violation Victims

•Deferment is available under MCL 750.451c for certain enumerated prostitution-related offenses “if the violation . . . was committed as a direct result of the individual being a victim of a human trafficking violation.” MCL 750.451c(1).

•The offender “bears the burden of proving to the court by a preponderance of the evidence that the violation was a direct result of his or her being a victim of human trafficking.” MCL 750.451c(2)(a).

•Without entering a judgment of guilt and with the consent of the offender and the prosecuting attorney, the court may defer the proceedings, place the offender on probation, and impose any conditions permitted under MCL 771.3 or MCL 750.451c(4). MCL 750.451c(2); MCL 750.451c(4).

•The court may enter an adjudication of guilt upon a violation of a term or condition of probation. MCL 750.451c(3).

•The court must enter an adjudication of guilt if the offender commits an enumerated offense or violates an order that he or she receive counseling for violent behavior or that he or she have no contact with a named individual. MCL 750.451c(5).

•Upon fulfillment of the terms and conditions of probation, the court must discharge the offender and dismiss the proceedings without adjudication of guilt. MCL 750.451c(6). Discharge and dismissal “is not a conviction for purposes of [MCL 750.451c] or for purposes of disqualifications or disabilities imposed by law upon conviction of a crime.” MCL 750.451c(6).

•All court proceedings under MCL 750.451c “must be open to the public.” MCL 750.451c(7). “[I]f the record of proceedings . . . is deferred . . . , the record of proceedings during the period of deferral must be closed to public inspection.” MCL 750.451c(7). However, unless a judgment of guilt is entered, the Department of State Police must retain a nonpublic record, which is open, for limited purposes as set out in MCL 750.451c(8)(a)-(c), to courts, law enforcement personnel, prosecuting attorneys, the Department of Corrections, and the Department of Health and Human Services. MCL 750.451c(8).

•MCL 762.11, Holmes Youthful Trainee Act (HYTA)

•Deferment as a youthful trainee is available to offenders who plead guilty to a criminal offense, other than a felony for which the maximum punishment is life imprisonment, a major controlled substance offense, a traffic offense, or an enumerated criminal sexual conduct offense. See MCL 762.11(3)(a)-(e).

•Until October 1, 2021, the offense must have occurred on or after the offender’s 17th birthday but before his or her 24th birthday; beginning October 1, 2021, the offense must have occurred on or after the offender’s 18th birthday but before his or her 26th birthday.⁵ MCL 762.11(1)-(2).

•Participation in a drug treatment court may be made a term or condition of deferral. MCL 762.13(1)(b).

•Without entering a judgment of conviction and with the offender’s consent, the court may assign the offender to the status of youthful trainee. MCL 762.11(1)-(2).

•MCL 762.11—MCL 762.14 contain provisions specific to the terms and conditions of an individual’s deferment as a youthful trainee.

•MCL 769.4a, Spouse Abuse Act

•Deferment is available to an accused convicted by plea or verdict if the accused has no previous convictions for an assaultive crime or has previously had proceedings deferred under MCL 769.4a. MCL 769.4a(1).

•Specified victims are the offender’s spouse or former spouse, a person with whom the offender has had a child, a person with whom the offender has or has had a dating relationship, or a person who resides or has resided in the same household with the offender. MCL 769.4a(1).

•With the consent of the accused and of the prosecuting attorney in consultation with the victim, the court may, without entering a judgment of guilt, defer further proceedings and place the accused on probation. MCL 769.4a(1).

•The order of probation may require the accused to pay for and participate in a mandatory counseling program. MCL 769.4a(3).

•Participation in a drug treatment court may be made a term or condition of deferral. MCL 769.4a(3).

•If the accused violates a term or condition of probation, the court may enter an adjudication of guilt and proceed as otherwise authorized. MCL 769.4a(2).

•The court must enter an adjudication of guilt and proceed as authorized if the accused commits an assaultive crime during probation. MCL 769.4a(4)(a); see also MCL 769.4a(8).

•The court must enter an adjudication of guilt and proceed as authorized if the accused violates the court’s order to receive counseling regarding the accused’s violent behavior. MCL 769.4a(4)(b).

•The court must enter an adjudication of guilt and proceed as authorized if the accused violates the court’s order that the accused have no contact with a named individual. MCL 769.4a(4)(c).

•If the accused fulfills the terms and conditions of probation, the court must discharge the individual from probation and dismiss the proceedings against him or her. MCL 769.4a(5).

•A person is entitled to only one discharge and dismissal under MCL 769.4a. MCL 769.4a(5).

•Discharge and dismissal is without an adjudication of guilt and is not a conviction for purposes of MCL 769.4a or for purposes of disqualifications or disabilities imposed by law for conviction of a crime. However, a discharge and dismissal does constitute a prior conviction for purposes of a prosecution under MCL 750.81(4) or MCL 750.81(5) (certain repeat offenses involving domestic assault or assault of a pregnant individual), or a prosecution under MCL 750.81a(3) for aggravated domestic assault with one or more previous domestic assault convictions. MCL 769.4a(5).

•All court proceedings under MCL 769.4a are open to the public. MCL 769.4a(6). “[I]f the record of proceedings . . . is deferred under [MCL 769.4a], the record of proceedings during the period of deferral must be closed to public inspection.” MCL 769.4a(6). However, unless a judgment of guilt is entered, the Department of State Police must retain a nonpublic record of the arrest, court proceedings, and disposition of the charge. MCL 769.4a(7). This nonpublic record is open, for limited purposes as set out in MCL 769.4a(7)(a)-(c), to courts, law enforcement personnel, prosecuting attorneys, the Department of Corrections, and the Department of Health and Human Services. MCL 769.4a(7).