2.2Issuance of Summons; Warrant

“The court may issue a bench warrant or summons^[1] upon finding probable cause to believe that a probationer has committed a non-technical violation of probation. The court must issue a summons, rather than a bench warrant, upon finding probable cause to believe a probationer has committed a technical violation of probation unless the court states on the record a specific reason to suspect that one or more of the following apply:

(1) The probationer presents an immediate danger to himself or herself, another person, or the public.

(2) The probationer has left court-ordered inpatient treatment without the court’s or the treatment facility’s permission.

(3) A summons has already been issued for the technical probation violation and the probationer failed to appear as ordered.” MCR 6.445(A)(1)-(3).

“An arrested^[2] probationer must promptly be brought before the court for arraignment on the alleged violation.” MCR 6.445(A).

If the probation violation is a technical probation violation, “there is a rebuttable presumption that the court shall not issue a warrant for arrest,” and “shall issue a summons or order to show cause to the probationer instead.” MCL 771.4b(7). A warrant may be issued if the court overcomes the presumption by stating on the record “a specific reason to suspect” that the probationer (1) “presents an immediate danger to himself or herself, another person, or the public”; (2) has left court-ordered inpatient treatment without permission; or (3) has already failed to appear after being issued a summons or order to show cause. Id.

“The Michigan statutory scheme governing probation and Michigan caselaw recognize that a probation revocation must occur, or must at least have been commenced, during the probation period.” People v Glass, 288 Mich App 399, 403, 405 (2010) (“The term ‘probation period’ in MCL 771.4 refers to the specific probation term that the sentencing court has imposed on a particular defendant.”). However, effective April 1, 2021, 2020 PA 397 amended MCL 771.4 and omitted the statute’s reference to the “probation period,” which is the statutory language that Court in Glass, and the cases Glass cites, relied on to conclude that the Court may not revoke probation after the probation period has expired. The current version of MCL 771.4 does not reference the “probation period” at all, and this omission makes it unclear whether the holding in Glass is still valid.

“[A] defendant’s period of probation is tolled when he [or she] absconds from probationary supervision.” Ritter, 186 Mich App at 711.³ “An absconding defendant should not be allowed to benefit from his wrongful noncompliance with the terms of his probation order.” Id. at 711-712 (“trial court properly revoked defendant’s probation because revocation proceedings were pending when the normal term of defendant’s probation would have expired and because defendant’s period of probation was tolled when he absconded from probationary supervision”).

“[O]nce a warrant for probation violation has been issued, the probation authorities must exercise due diligence in executing it.” People v Ortman, 209 Mich App 251, 254, 257 (1995). “If there is a determination that the probation authorities did not act with reasonable dispatch under all the circumstances, then there is a waiver of the probation violation.” Id (“Because the probation authorities did not exercise due diligence in executing the warrant, the probation violation should have been waived.”).