Except for the felonies listed in MCL 771.1(1), probation is generally available as an alternative sentence for any felony, misdemeanor, or ordinance violation if the court finds that (1) the defendant is unlikely “to engage in an offensive or criminal course of conduct” again, and (2) “the public good does not require that the defendant suffer the penalty imposed by law[.]” MCL 771.1(1). See also People v McKeown, 228 Mich App 542, 545 (1998) (“the Legislature did not include the attempt statute [(MCL 750.92)] in the list of felonies for which a defendant could not be given probation,” and that omission “evidenced an intent to include probation as another alternative sentence under the attempt statute”).
Probation is not permitted for convictions of:
•murder;
•treason;
•first-degree criminal sexual conduct;
•third-degree criminal sexual conduct;
•armed robbery; or
•major controlled substance offenses. MCL 771.1(1).
Note that the legislative sentencing guidelines expressly authorize probationary terms for offenses subject to the guidelines when the recommended minimum sentence range falls within an intermediate sanction cell. See MCL 769.31(b).1
A.Defendant May Decline Probation Sentence
“[A] defendant may decline a sentence of probation and instead seek a sentence of incarceration.” People v Bensch, 328 Mich App 1, 13 (2019). See also MCL 771.4(1) (probationer must agree to granting and continuance of probation).
B.Probation Period2
Except as provided in MCL 771.2a (dealing with probation periods for various stalking, child abuse, violent felony, and sex offenses3) and MCL 768.36 (establishing sentencing and probation requirements for a person found guilty but mentally ill4), a probation period imposed on a defendant “convicted of an offense that is not a felony” must not exceed two years. MCL 771.2(1).5
Similarly, except as provided in MCL 771.2a and MCL 768.36, the term of probation imposed on a defendant convicted of a felony offense must not exceed three years. MCL 771.2(1). “However, the probation term for a felony under this subsection may be extended not more than 2 times for not more than 1 additional year for each extension if the court finds that there is a specific rehabilitation goal that has not yet been achieved, or a specific, articulable, and ongoing risk of harm to a victim that can be mitigated only with continued probation supervision.” Id.
MCL 771.2(1) “does not apply to a juvenile placed on probation and committed under [MCL 769.1(3) or MCL 769.1(4)] to an institution or agency described in . . . MCL 803.301 to [MCL] 803.309.” MCL 771.2(14).
C.Early Discharge from Probation
Both MCL 771.2 and MCR 6.441 govern early probation discharge.
“Except as provided in [MCL 771.2(10) (setting out offenses that are not eligible for reduced probation6)], [MCL 771.2a (dealing with probation periods for various stalking, child abuse, violent felony, and sex offenses)7], and [MCL 768.36 (establishing sentencing and probation requirements for a person found guilty but mentally ill)8], after the defendant has completed 1/2 of the original felony or misdemeanor probation period, he or she may be eligible for early discharge[.]” MCL 771.2(2). See also MCR 6.441(A) (stating probationer is eligible for early discharge, except as otherwise provided in statute, after completing half of the original probationary period and all required programming). “The defendant must be notified at sentencing of his or her eligibility and the requirements for early discharge from probation, and the procedure provided under [MCL 771.2(3)] to notify the court of his or her eligibility.” MCL 771.2(2). See also MCR 6.441(A) (stating “[t]he court must notify the probationer at the time of sentencing, either orally or in writing, about the probationer’s early probation discharge eligibility and the notice process contained in this rule”).
“If the court reduces a defendant’s probationary term under [MCL 771.2], the period by which that term was reduced must be reported to the department of corrections.” MCL 771.2(11).9
1.Early Discharge Eligibility Notification Procedure
Probation department notifies. “If a probationer has completed all required programming, the probation department may notify the sentencing court that the probationer may be eligible for early discharge from probation.” MCL 771.2(3). See also MCR 6.441(B) (stating essentially the same). The Court rule further requires that “[t]he notice must be served on the prosecuting attorney and probationer.” Id.
Probationer notifies. “If the probation department does not notify the sentencing court as required under this subsection and the probationer has not violated probation in the immediately preceding 3 months, the probationer may notify the court that he or she may be eligible for early discharge from probation” using SCAO Form MC 512, Notice Regarding Eligibility for Early Discharge from Probation. MCL 771.2(3). See also MCR 6.441(B) (stating essentially the same). The Court rule further requires that the probationer serve copies of the notice on the prosecuting attorney and the probation department. Id.
Prosecutor objections. “The prosecuting attorney must file any written objection to early probation discharge within 14 days of receiving service of the notice.” MCR 6.441(B).
Court’s discretion. “This subsection does not prohibit 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) (stating MCR 6.441 “does not prohibit a defendant from motioning, a probation officer from recommending, or the court from considering, a probationer for early discharge from probation at the court’s discretion at any time during the duration of the probation term”).
“Upon receiving notice [of eligibility for early discharge under MCR 6.441(B)], the court must conduct a preliminary review of the case to determine whether the probationer’s behavior warrants a reduction in the original probationary term.” MCR 6.441(C).
3.Early Discharge Without a Hearing
Both the statute and the court rule provide for early discharge without a hearing. The statute provides that: “Upon notification as provided under [MCL 771.2(3)], the sentencing court may review the case and the probationer’s conduct while on probation to determine whether the probationer’s behavior warrants an early discharge. Except as provided in [MCL 771.2(7)], if the court determines that the probationer’s behavior warrants a reduction in the probationary term, the court may grant an early discharge from probation without holding a hearing.” MCL 771.2(5).
The court rule provides in relevant part: “Except as provided in [MCR 6.441(E)], the court must discharge a probationer from probation, without a hearing, if the prosecutor does not submit a timely objection and the court’s review in [MCR 6.441(C)] determines 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).
Ability to pay. Note that “[a] probationer must not be considered ineligible for early discharge because of an inability to pay for the conditions of his or her probation, or for outstanding court-ordered fines, fees, or costs, so long as the probationer has made good-faith efforts to make payments. However, nothing in this subsection relieves a probationer from his or her court-ordered financial obligations after discharge from probation.” MCL 771.2(4). See also MCR 6.441(C) (stating substantially the same).
Restitution. “Before granting early discharge to a probationer who owes outstanding restitution, the court must consider the impact of early discharge on the victim and the payment of outstanding restitution. If a probationer has made a good-faith effort to pay restitution and is otherwise eligible for early discharge, the court 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(5). See also MCR 6.441(C)-(D) (stating substantially the same).
Under the statute, a hearing is required under two circumstances: (1) when the court does not grant early discharge without a hearing; or (2) when the person is on probation for certain specified felonies.
Specifically, “[i]f after reviewing the case under [MCL 771.2(5)], the court determines that the probationer’s behavior does not warrant an early discharge, 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 continued probation supervision.” MCL 771.2(6).
Further, “[t]he sentencing court shall hold a hearing before granting early discharge to a probationer serving a term of probation for a felony offense eligible for early discharge that involves a victim who has requested to receive notice under . . . [the following provisions of the Crime Victim’s Rights Act,] MCL 780.768b, [MCL] 780.769, [MCL] 780.769a, [MCL] 780.770, and [MCL] 780.770a, or for a misdemeanor violation of . . . MCL 750.81, [MCL] 750.81a, and [MCL] 750.136b, that is eligible for early discharge.” MCL 771.2(7).
Under MCR 6.441(E), “[t]he court must hold a hearing after conducting the review 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, or
(3) 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.”
5.Hearing Procedures and Considerations
Required notices for hearing. The prosecutor is required to notify the victim of the date and time of any hearing held under MCL 771.2(7), “and the victim must be given an opportunity to be heard.” MCL 771.2(8). See also MCR 6.441(E) (stating substantially the same, but further providing that in addition to the victim, the probationer must also “be given an opportunity to be heard at the hearing”).
Discharge After Hearing. “Upon the conclusion of the hearing, the court must either grant early discharge or, if applicable, retain the probationer on probation with the sole condition of continuing restitution payments, if the probationer proves by a preponderance of the evidence 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).
See also MCL 771.2(7) (stating “[i]f a probationer owes outstanding 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”).
“The court shall, by order to be entered in the case as the court directs by general rule or in each case, fix and determine the period, conditions, and rehabilitation goals of probation.” MCL 771.2(11). “The order is part of the record in the case.” Id.
“In its probation order or by general rule, the court may provide for the apprehension, detention, and confinement of a probationer accused of violating a probation condition.” MCL 771.4(3).
“The court may amend the [probation] order in form or substance at any time.” MCL 771.2(11). However, after a probationary period expires, the circuit court lacks authority to extend or otherwise amend the probationary order under MCL 771.2(11). People v Vanderpool, 505 Mich 391, 399-400, 409 (2020).10 The phrase “at any time” as used in MCL 771.2(11) means “at any time while defendant was under the order of probation,” and does not give the court authority to amend a probation order after the expiration of the probation term. Vanderpool, 505 Mich at 400.
A probation order generally “may be amended ex parte[.]” People v Britt, 202 Mich App 714, 716 (1993). A defendant is not entitled to notice or an opportunity to be heard regarding an amendment, unless the amendment would result in a fundamental change in his or her liberty interest, such as confinement. Id. at 716-717 (placement in an electronic tether program “is not the equivalent of confinement”; accordingly, due process protections do not attach before amendment of a probation order to include placement in an electronic tether program).
See also SCAO Form MC 243, Order of Probation.
E.Plea Agreements and Orders of Probation
A defendant is not entitled to withdraw his or her plea or to demand specific performance of a plea agreement when a trial court imposes otherwise valid conditions on the defendant’s probation even if the conditions were not included in the plea agreement. People v Johnson, 210 Mich App 630, 634-635 (1995).
The proper remedy was withdrawal of the plea and vacation of the plea agreement where a defendant pleaded guilty pursuant to a plea agreement that was later determined to impose a penalty contrary to statutory requirements regarding permissible penalties for technical probation violations.11 People v Jackson, ___ Mich App ___, ___ (2023). The Court rejected the defendant’s request “to order the trial court to reform the plea agreement in a manner that would allow him to keep the plea but change the penalty.” Id. at ___. It explained that if the court rejected the “sentence while keeping the rest of the agreement” it would be imposing a plea bargain upon the prosecution to which it did not agree. Id. at ___ (quotation marks and citation omitted). Instead, the Court held that where it is discovered that the penalty imposed as a result of a plea bargain was improper, “the trial court must give the prosecutor the opportunity to withdraw the plea” even if the defendant does not request withdrawal. Id. at ___.
“[O]nly the trial court can impose the conditions of probation[.]” People v Peters, 191 Mich App 159, 166 (1991). Accordingly, it is an abuse of discretion to delegate this authority. Id. However, the court “can delegate the normal supervision of those conditions,” and thus, “[i]t is not an improper delegation of authority to set conditions of probation that allow probation department employees to act in an advisory capacity to the court.” Id. at 165-166 (“[r]equiring defendant to be bound by the internal rules and procedures of [a probation enhancement program] was nothing more than requiring him to abide by the parameters of a program established to provide a structure within which his probation and rehabilitation could proceed to successful conclusion”; accordingly, there was no improper delegation of authority). Id. at 166.
G.Termination of the Probation Period
When a probationer’s term of probation terminates, the probation officer must report to the court that the probation period has ended. MCL 771.5(1) The officer must also inform the court of the probationer’s conduct during the probation period. Id. “Upon receiving the report, the court may discharge the probationer from further supervision and enter a judgment of suspended sentence or extend the probation period as the circumstances require, so long as the maximum probation period is not exceeded.” Id.
After a probationary period expires, the circuit court lacks authority to extend the probationary period under MCL 771.5(1). People v Vanderpool, 505 Mich 391, 399-400, 409 (2020) (holding that where the defendant’s probation officer did not notify the circuit court or report on the defendant’s conduct on or before the date that his probation ended, his probation terminated on that date and the trial court could not extend the probation period upon request of the probation officer after the date of termination).
“When a probationer is discharged upon the expiration of the probation period, or upon its earlier termination by order of the court, entry of the discharge shall be made in the records of the court, and the probationer shall be entitled to a certified copy thereof.” MCL 771.6. A “circuit court’s failure to carry out its duty to [enter a discharge order under MCL 771.6 does] not expand its authority to extend defendant’s term of probation,” and it “does not result in defendant having to comply with the expired order.” Vanderpool, 505 Mich at 402-403 (holding that defendant is discharged from probation on the date the order terminates regardless of whether the court meets its statutory obligation to enter an order of discharge).
H.Revoking Probation and Probation Violation Sentencing
“It is the intent of the legislature that the granting of probation is a matter of grace requiring the agreement of the probationer to its granting and continuance.” MCL 771.4(1).12 “All probation orders are revocable subject to the requirements of [MCL 771.4b13], but revocation of probation, and subsequent incarceration, should be imposed only for repeated technical violations, for new criminal behavior, as otherwise allowed in [MCL 771.4b], or upon request of the probationer. MCL 771.4(2). However, probation may not be revoked upon the medical use of marijuana because “the revocation of probation is a penalty or the denial of a privilege,” and the Michigan Medical Marihuana Act (MMMA), MCL 333.26424(a), protects a person “from penalty in any manner, or denial of any right or privilege, for the lawful use of medical marijuana.” People v Thue, 336 Mich App 35, 48 (2021).14 “Therefore, a court cannot revoke probation because of a person’s use of medical marijuana that otherwise complies with the terms of the MMMA.” Id.
The court must revoke probation if the probationer “willfully violates the sex offenders registration act.” MCL 771.4a.
A trial court’s jurisdiction to revoke a defendant’s probation and sentence him or her to imprisonment is limited to the duration of the probationary period; if the probationary period expires, the trial court loses jurisdiction to revoke probation and impose a prison sentence. People v Glass, 288 Mich App 399, 408 (2010).15
“Hearings on the revocation must be summary and informal and not subject to the rules of evidence or of pleadings applicable in criminal trials.” MCL 771.4(2). “The method of hearing and presentation of charges are within the court’s discretion, except that the probationer is entitled to a written copy of the charges constituting the claim that he or she violated probation and to a probation revocation hearing.” MCL 771.4(4). Subject to MCL 771.4b, “the court may investigate and enter a disposition of the probationer as the court determines best serves the public interest.” MCL 771.4(5). “If a probation order is revoked, the court may sentence the probationer in the same manner and to the same penalty as the court might have done if the probation order had never been made.” Id. See also MCR 6.445(G) (procedure for sentencing after violation of probation).16
MCL 771.4 “does not apply to a juvenile placed on probation and committed under [MCL 803.301(3) or [MCL] 803.301(4).]” MCL 771.4(6).
I.Technical Probation Violations
Temporary incarceration for a technical probation violation is permitted for a specified amount of time, depending on whether the person was convicted of or pleaded guilty to a misdemeanor or felony and whether it is a first, second, third, or fourth or subsequent technical violation. MCL 771.4b(1). Note that a “court may not impose a sentence of incarceration or revoke probation for acknowledging a technical probation violation under [MCR 6.450], but the court may count the acknowledgment for the purpose of identifying the number of technical probation violations under MCL 771.4b.” MCR 6.450(B). A jail sanction for a technical probation violation “may be extended to not more than 45 days if the probationer is awaiting placement in a treatment facility and does not have a safe alternative location to await treatment.” MCL 771.4b(3). When counting technical probation violations, violations that “arise[] out of the same transaction” must be counted as a single probation violation for purposes of MCL 771.4b. MCL 771.4b(5).
“A probationer may acknowledge a technical probation violation in writing without a hearing before the court being required.” MCL 771.4b(2). See also SCAO Form MC 521, Technical Probation Violation Acknowledgment. MCR 6.450 governs the procedure for acknowledgement of a technical probation violation. For a detailed discussion of this procedure, see the Michigan Judicial Institute’s Criminal Proceedings Benchbook, Vol. 3, Chapter 2.
“Subject to the exception in [771.4b(6)17], the court shall not revoke probation on the basis of a technical probation violation unless a probationer has already been sanctioned for 3 or more technical probation violations and commits a new technical probation violation.” 771.4b(4). Further, a court may not revoke probation for acknowledging a technical probation violation under MCR 6.450. MCR 6.450(B).
“[T]here is a rebuttable presumption that the court shall not issue a warrant for arrest for a technical probation violation 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.
When a probationer is arrested and detained for a technical probation violation hearing, the hearing must be held “as soon as is possible,” and “[i]f the hearing is not held within the applicable and permissible jail sanction, as determined under [MCL 771.4b(1)(a)-(b)], the probationer must be returned to community supervision.” MCL 771.4b(8).
For a detailed discussion of probation violations and the procedures involved in probation revocation, see the Michigan Judicial Institute’s Criminal Proceedings Benchbook, Vol. 3, Chapter 2. See also the Michigan Judicial Institute’s checklist describing probation violation sentencing and the Michigan Judicial Institute’s flowchart describing the procedures that apply to probation violations, including sentencing.
1 See Section 1.8 for discussion of intermediate sanctions.
2 Effective March 1, 2003, 2002 PA 666 eliminated the “lifetime probation” provision in MCL 771.1(4). Before the amendment, a trial court could sentence a defendant to lifetime probation for violating or conspiring to violate MCL 333.7401(2)(a)(iv) or MCL 333.7403(2)(a)(iv) (certain controlled substance offenses). MCL 771.2(12) still references the previous version of MCL 771.1(4), stating: “A defendant who was placed on probation under [MCL 771.1(4)] as it existed before March 1, 2003 for an offense committed before March 1, 2003 is subject to the conditions of probation specified in [MCL 771.3], including payment of a probation supervision fee as prescribed in [MCL 771.3c], and to revocation for violation of these conditions, but the probation period must not be reduced other than by a revocation that results in imprisonment or as otherwise provided by law.”
3 Discussed in Section 9.6.
4 “If a defendant who is found guilty but mentally ill is placed on probation under the jurisdiction of the sentencing court as provided by law, the trial judge, upon recommendation of the center for forensic psychiatry, shall make treatment a condition of probation. Reports as specified by the trial judge shall be filed with the probation officer and the sentencing court. Failure to continue treatment, except by agreement with the treating agency and the sentencing court, is grounds for revocation of probation. The period of probation shall not be for less than 5 years and shall not be shortened without receipt and consideration of a forensic psychiatric report by the sentencing court. Treatment shall be provided by an agency of the department of community health or, with the approval of the sentencing court and at individual expense, by private agencies, private physicians, or other mental health personnel. A psychiatric report shall be filed with the probation officer and the sentencing court every 3 months during the period of probation. If a motion on a petition to discontinue probation is made by the defendant, the probation officer shall request a report as specified from the center for forensic psychiatry or any other facility certified by department of community health for the performance of forensic psychiatric evaluation.” MCL 768.36(4).
5 For purposes of the Code of Criminal Procedure’s probation statute, “felony” includes two-year misdemeanors. People v Smith, 423 Mich 427, 434 (1985).
6 MCL 771.2(10) provides that a defendant convicted of one or more of the following crimes is not eligible for reduced probation under MCL 771.2: a domestic violence related violation of MCL 750.81, MCL 750.81a, an offense involving domestic violence as that term is defined in MCL 400.1501, a violation of MCL 750.84, MCL 750.411h, MCL 750.411i, MCL 750.520c, MCL 750.520e, a listed offense, an offense for which a defense was asserted under MCL 768.36 (insanity and related defenses), or a violation MCL 750.462a to MCL 750.462h or former section MCL 750.462i or MCL 750.462j.
7 Discussed in Section 9.6.
8 In relevant part, MCL 768.36(4) provides that “[t]he period of probation shall not be for less than 5 years and shall not be shortened without receipt and consideration of a forensic psychiatric report by the sentencing court.” (Emphasis added.)
9 The Department of Corrections is required to report to various legislative committees information about felony probationers released early. MCL 771.2(9).
10 Vanderpool refers to MCL 771.2(5); however, that subsection was renumbered by 2020 PA 397, effective April 1, 2021.
11 The trial court was not aware of the amendments to MCL 771.4b made by 2020 PA 397, effective April 1, 2021, and revoked the defendant’s probation and sentenced him to 30 months to 15 years in prison in violation of MCL 771.4b(1)(b)(ii) and MCL 771.4b(4) because the probation violation was defendant’s second technical probation violation; accordingly, the maximum allowable sentence was 30 days in jail and his probation should not have been revoked. People v Jackson, ___ Mich App ___, ___ (2023). See Section 9.2(I) for a discussion of technical probation violations.
12 Note that MCL 771.4 does not apply to certain juvenile offenders. See MCL 771.4.
13 Discussed in Section 9.2(I).
14 For a detailed discussion of the Michigan Medical Marihuana Act, see the Michigan Judicial Institute’s Controlled Substances Benchbook, Chapter 8.
15 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.
16 However, in district court cases, “[u]nless a defendant who is entitled to appointed counsel is represented by an attorney or has waived the right to an attorney, . . . the defendant may not be incarcerated for violating probation or any other condition imposed in connection with this conviction.” MCR 6.610(G)(3). In circuit court cases, the court must comply with MCR 6.425(B) and MCR 6.425(D) before incarcerating a defendant for a probation violation. MCR 6.445(G). See the Michigan Judicial Institute’s Criminal Proceedings Benchbook, Vol. 3, Chapter 2, for more information on sentencing a defendant following a probation violation. See also the Michigan Judicial Institute’s Probation Violation Quick Reference Materials.
17 MCL 771.4b(6) provides that MCL 771.4b(1) is not applicable to a probationer who is on probation for a domestic violence violation of MCL 750.81 or MCL 750.81a, an offense involving domestic violence, or a violation of MCL 750.411h or MCL 750.411i. MCL 771.4b(6).