9.6Probation—Offenses with Special Rules

MCL 771.2a addresses special probation periods for certain types of offenses. However, MCL 771.2a(1)-(5) are not applicable 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 the Youth Rehabilitation Services Act, MCL 803.301 et seq. MCL 771.2a(6).

“The court shall by order, to be filed or entered in the cause as the court directs by general rule or in each case, fix and determine the period, conditions, and rehabilitation goals of probation.” MCL 771.2a(5). “The order is part of the record in the cause,” and “[t]he court may amend the order in form or substance at any time.” MCL 771.2a(5).

A.Stalking Offenses and Orders of Probation

1.Stalking

In accord with the general rule in MCL 771.2(1), an individual convicted of violating MCL 750.411h (stalking) may be sentenced to no more than five years of probation. MCL 771.2a(1); MCL 750.411h(3). A probationary period imposed for a stalking conviction is subject to the terms and conditions of probation contained in MCL 750.411h(3) and MCL 771.3.¹ MCL 771.2a(1). In addition to other lawful conditions imposed, MCL 750.411h(3) permits a court to order a defendant sentenced to probation to:

•“Refrain from stalking any individual during the term of probation.” MCL 750.411h(3)(a).

•“Refrain from having any contact with the victim of the offense.” MCL 750.411h(3)(b).

•“Be evaluated to determine the need for psychiatric, psychological, or social counseling and if, determined appropriate by the court, to receive psychiatric, psychological, or social counseling at the individual’s own expense.” MCL 750.411h(3)(c).

2.Aggravated Stalking

An individual who is sentenced to probation for a violation of MCL 750.411i (aggravated stalking) may be sentenced to probation for any term of years, but the court must sentence the individual to a term of probation of not less than five years. MCL 771.2a(2); MCL 750.411i(4). A probationary period imposed for an aggravated stalking conviction is subject to the terms and conditions of probation contained in MCL 750.411i(4) and MCL 771.3.² MCL 771.2a(2). MCL 750.411i(4) permits a court to order a defendant sentenced to probation to:

•“Refrain from stalking any individual during the term of probation.” MCL 750.411i(4)(a).

•“Refrain from any contact with the victim of the offense.” MCL 750.411i(4)(b).

•“Be evaluated to determine the need for psychiatric, psychological, or social counseling and, if determined appropriate by the court, to receive psychiatric, psychological, or social counseling at his or her own expense.” MCL 750.411i(4)(c).

B.Child Abuse Offense and Probation

“The court may place an individual convicted of a violation of . . . MCL 750.136b, that is designated as a misdemeanor on probation for not more than 5 years.” MCL 771.2a(3).

C.Violent Felony Offenses and Probation

“Except as provided in [MCL 771.2a(2) and MCL 771.2a(6)], the court may place an individual convicted of a violent felony on probation for not more than 5 years.” MCL 771.2a(4).

D.Sex Offenders and Probation Orders

Generally, offenders convicted of a listed offense may be placed on probation “for any term of years but not less than 5 years.”³ MCL 771.2a(7).

The sentence of probation must comply with the requirements of MCL 771.2a(8)-(13), which require additional conditions of probation. MCL 771.2a(7). Specifically, the court must order an individual placed on probation under MCL 771.2a(7) not to do any of the following:

•“Reside within a student safety zone,” MCL 771.2a(8)(a);

•“Work within a student safety zone,” MCL 771.2a(8)(b); or

•“Loiter within a student safety zone,” MCL 771.2a(8)(c).

However, MCL 771.2a(9)-(12) provide circumstances where some of the conditions required by MCL 771.2a must not be imposed, and MCL 771.2a(13) provides circumstances where the court may exempt an individual convicted of a listed offense from probation under MCL 771.2a(7).

Student offenders. If the defendant is a student at a school in Michigan and is convicted of (or if a juvenile is adjudicated for) a violation of MCL 750.520b, MCL 750.520c, MCL 750.520d, MCL 750.520e, or MCL 750.520g, the order of probation must include an order prohibiting the defendant or juvenile from “[a]ttending the same school building that is attended by the victim of the violation,” and “[u]tilizing a school bus for transportation to and from any school if the individual or juvenile will have contact with the victim during use of the school bus.” MCL 750.520o(1).

For a detailed discussion of postconviction and sentencing matters specific to sex offenders, see the Michigan Judicial Institute’s Sexual Assault Benchbook, Chapter 9.