9.5Requirements When Costs Are Imposed as Probation Condition

If costs are imposed on a probationer under MCL 771.3(2) as part of a sentence of probation, all of the provisions of MCL 771.3(6) apply. MCL 771.3(6)(a)-(b) provide:

“(a) The court shall not require a probationer to pay costs under [MCL 771.3(2)] unless the probationer is or will be able to pay them during the term of probation. In determining the amount and method of payment of costs under [MCL 771.3(2)], the court shall take into account the probationer’s financial resources and the nature of the burden that payment of costs will impose, with due regard to his or her other obligations.

(b) A probationer who is required to pay costs under [MCL 771.3(1)(g) or MCL 771.3(2)(c)] and who is not in willful default of the payment of the costs may petition the sentencing judge or his or her successor at any time for a remission of the payment of any unpaid portion of those costs. If the court determines that payment of the amount due will impose a manifest hardship on the probationer or his or her immediate family, the court may remit all or part of the amount due in costs or modify the method of payment.”

If a probationer is required to pay costs as part of a sentence of probation, the court may require him or her to pay the costs:

• immediately, or

•within a specified time period, or

•in installments. MCL 771.3(7).

Whenever a probationer is ordered to pay costs as part of his or her sentence of probation, compliance with that order must be a condition of probation. MCL 771.3(8). “[T]he court may only sanction a probationer to jail or revoke the probation of a probationer who fails to comply with the order [to pay costs] if the probationer has the ability to pay and has not made a good-faith effort to comply with the order.” Id.¹ In deciding whether to revoke probation, the court must consider the factors set out in MCL 771.3(8):

•the probationer’s employment status;

•the probationer’s earning ability;

•the probationer’s financial resources;

•the willfulness of the probationer’s failure to pay; and

•any other special circumstances that may impact a probationer’s ability to pay.

“The court may not sentence the probationer to prison without having considered a current presentence report and may not sentence the probationer to prison or jail (including for failing to pay fines, costs, restitution, and other financial obligations imposed by the court) without having complied with the provisions set forth in MCR 6.425(B) [(governing presentence investigation reports)] and [MCR 6.425(D) (governing sentencing procedure)].” MCR 6.445(G).

“The court shall not sentence a defendant to a term of incarceration, nor revoke 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.” MCR 6.425(D)(3)(a). See Section 8.4 for additional discussion of MCR 6.425(D)(3) and a defendant’s ability to pay court-ordered financial obligations.

See also MCL 769.1k(1)(a) (requiring the imposition of minimum state costs under MCL 769.1j); MCL 769.1k(1)(b)(ii)-(iii) (authorizing the imposition of various costs); MCL 769.1k(2) (authorizing the imposition of additional costs incurred in compelling the defendant’s appearance).² For a detailed discussion of issues regarding costs ordered as a condition of probation, see Section 8.9(C).