Act No. 666
Public Acts of 2002
Approved by the Governor
December 25, 2002
Filed with the Secretary of State
December 26, 2002
EFFECTIVE DATE: March 1, 2003
STATE OF MICHIGAN
91ST LEGISLATURE
REGULAR SESSION OF 2002
Introduced by Reps. McConico, Kowall, Julian and Hardman
Reps. Adamini, Bogardus, Bovin, Rich Brown, Clark, Clarke, Daniels, DeWeese, Drolet, Durhal, Garza, George, Hale, Hansen, Howell, Jacobs, Kolb, Kooiman, Lemmons, Lipsey, Minore, Murphy, Palmer, Phillips, Reeves, Rison, Thomas, Voorhees, Waters, Whitmer, Williams and Zelenko named co-sponsors
ENROLLED HOUSE BILL No. 5395
AN ACT to amend 1927 PA 175, entitled "An act to revise, consolidate, and codify the laws relating to criminal procedure and to define the jurisdiction, powers, and duties of courts, judges, and other officers of the court under the provisions of this act; to provide laws relative to the rights of persons accused of criminal offenses and ordinance violations; to provide for the arrest of persons charged with or suspected of criminal offenses and ordinance violations; to provide for bail of persons arrested for or accused of criminal offenses and ordinance violations; to provide for the examination of persons accused of criminal offenses; to regulate the procedure relative to grand juries, indictments, informations, and proceedings before trial; to provide for trials of persons complained of or indicted for criminal offenses and ordinance violations and to provide for the procedure in those trials; to provide for judgments and sentences of persons convicted of criminal offenses and ordinance violations; to establish a sentencing commission and to prescribe its powers and duties; to provide for procedure relating to new trials and appeals in criminal and ordinance violation cases; to provide a uniform system of probation throughout this state and the appointment of probation officers; to prescribe the powers, duties, and compensation of probation officers; to provide penalties for the violation of the duties of probation officers; to provide for procedure governing proceedings to prevent crime and proceedings for the discovery of crime; to provide for fees of officers, witnesses, and others in criminal and ordinance violation cases; to set forth miscellaneous provisions as to criminal procedure in certain cases; to provide penalties for the violation of certain provisions of this act; and to repeal all acts and parts of acts inconsistent with or contravening any of the provisions of this act," by amending section 34 of chapter IX, sections 1 and 2 of chapter XI, and sections 13m, 43, 45, and 57 of chapter XVII (MCL 769.34, 771.1, 771.2, 777.13m, 777.43, 777.45, and 777.57), section 34 of chapter IX and section 43 of chapter XVII as amended by 2000 PA 279, section 1 of chapter XI as amended by 2002 PA 483, section 2 of chapter XI as amended by 1998 PA 520, section 13m of chapter XVII as added by 2002 PA 30, section 45 of chapter XVII as added by 1998 PA 317, and section 57 of chapter XVII as amended by 1999 PA 227.
The People of the State of Michigan enact:
CHAPTER IX
Sec. 34. (1) The sentencing guidelines promulgated by order of the Michigan supreme court do not apply to felonies enumerated in part 2 of chapter XVII committed on or after January 1, 1999.
(2) Except as otherwise provided in this subsection or for a departure from the appropriate minimum sentence range provided for under subsection (3), the minimum sentence imposed by a court of this state for a felony enumerated in part 2 of chapter XVII committed on or after January 1, 1999 shall be within the appropriate sentence range under the version of those sentencing guidelines in effect on the date the crime was committed. Both of the following apply to minimum sentences under this subsection:
(a) If a statute mandates a minimum sentence for an individual sentenced to the jurisdiction of the department of corrections, the court shall impose sentence in accordance with that statute. Imposing a mandatory minimum sentence is not a departure under this section. If a statute mandates a minimum sentence for an individual sentenced to the jurisdiction of the department of corrections and the statute authorizes the sentencing judge to depart from that minimum sentence, imposing a sentence that exceeds the recommended sentence range but is less than the mandatory minimum sentence is not a departure under this section. If the Michigan vehicle code, 1949 PA 300, MCL 257.1 to 257.923, mandates a minimum sentence for an individual sentenced to the jurisdiction of the department of corrections and the Michigan vehicle code, 1949 PA 300, MCL 257.1 to 257.923, authorizes the sentencing judge to impose a sentence that is less than that minimum sentence, imposing a sentence that exceeds the recommended sentence range but is less than the mandatory minimum sentence is not a departure under this section.
(b) The court shall not impose a minimum sentence, including a departure, that exceeds 2/3 of the statutory maximum sentence.
(3) A court may depart from the appropriate sentence range established under the sentencing guidelines set forth in chapter XVII if the court has a substantial and compelling reason for that departure and states on the record the reasons for departure. All of the following apply to a departure:
(a) The court shall not use an individual's gender, race, ethnicity, alienage, national origin, legal occupation, lack of employment, representation by appointed legal counsel, representation by retained legal counsel, appearance in propria persona, or religion to depart from the appropriate sentence range.
(b) The court shall not base a departure on an offense characteristic or offender characteristic already taken into account in determining the appropriate sentence range unless the court finds from the facts contained in the court record, including the presentence investigation report, that the characteristic has been given inadequate or disproportionate weight.
(4) Intermediate sanctions shall be imposed under this chapter as follows:
(a) If the upper limit of the recommended minimum sentence range for a defendant determined under the sentencing guidelines set forth in chapter XVII is 18 months or less, the court shall impose an intermediate sanction unless the court states on the record a substantial and compelling reason to sentence the individual to the jurisdiction of the department of corrections. An intermediate sanction may include a jail term that does not exceed the upper limit of the recommended minimum sentence range or 12 months, whichever is less.
(b) If an attempt to commit a felony designated in offense class H in part 2 of chapter XVII is punishable by imprisonment for more than 1 year, the court shall impose an intermediate sanction upon conviction of that offense absent a departure.
(c) If the upper limit of the recommended minimum sentence exceeds 18 months and the lower limit of the recommended minimum sentence is 12 months or less, the court shall sentence the offender as follows absent a departure:
(i) To imprisonment with a minimum term within that range.
(ii) To an intermediate sanction that may include a term of imprisonment of not more than 12 months.
(5) If a crime has a mandatory determinant penalty or a mandatory penalty of life imprisonment, the court shall impose that penalty. This section does not apply to sentencing for that crime.
(6) As part of the sentence, the court may also order the defendant to pay any combination of a fine, costs, or applicable assessments. The court shall order payment of restitution as provided by law.
(7) If the trial court imposes on a defendant a minimum sentence that is longer or more severe than the appropriate sentence range, as part of the court's advice of the defendant's rights concerning appeal, the court shall advise the defendant orally and in writing that he or she may appeal the sentence as provided by law on grounds that it is longer or more severe than the appropriate sentence range.
(8) All of the following shall be part of the record filed for an appeal of a sentence under this section:
(a) An entire record of the sentencing proceedings.
(b) The presentence investigation report. Any portion of the presentence investigation report exempt from disclosure by law shall not be a public record.
(c) Any other reports or documents the sentencing court used in imposing sentence.
(9) An appeal of a sentence under this section does not stay execution of the sentence.
(10) If a minimum sentence is within the appropriate guidelines sentence range, the court of appeals shall affirm that sentence and shall not remand for resentencing absent an error in scoring the sentencing guidelines or inaccurate information relied upon in determining the defendant's sentence. A party shall not raise on appeal an issue challenging the scoring of the sentencing guidelines or challenging the accuracy of information relied upon in determining a sentence that is within the appropriate guidelines sentence range unless the party has raised the issue at sentencing, in a proper motion for resentencing, or in a proper motion to remand filed in the court of appeals.
(11) If, upon a review of the record, the court of appeals finds the trial court did not have a substantial and compelling reason for departing from the appropriate sentence range, the court shall remand the matter to the sentencing judge or another trial court judge for resentencing under this chapter.
(12) Time served on the sentence appealed under this section is considered time served on any sentence imposed after remand.
CHAPTER XI
Sec. 1. (1) In all prosecutions for felonies or misdemeanors other than murder, treason, criminal sexual conduct in the first or third degree, armed robbery, and major controlled substance offenses not described in subsection (4), if the defendant has been found guilty upon verdict or plea and the court determines that the defendant is not likely again to engage in an offensive or criminal course of conduct and that the public good does not require that the defendant suffer the penalty imposed by law, the court may place the defendant on probation under the charge and supervision of a probation officer.
(2) In an action in which the court may place the defendant on probation, the court may delay sentencing the defendant for not more than 1 year to give the defendant an opportunity to prove to the court his or her eligibility for probation or other leniency compatible with the ends of justice and the defendant's rehabilitation. When sentencing is delayed, the court shall enter an order stating the reason for the delay upon the court's records. The delay in passing sentence does not deprive the court of jurisdiction to sentence the defendant at any time during the period of delay.
(3) If a defendant is before the circuit court and the court delays imposing sentence under subsection (2), the court shall include in the delayed sentence order that the department of corrections shall collect a supervision fee of not more than $135.00 multiplied by the number of months of delay ordered, but not more than 12 months. The fee is payable when the delayed sentence order is entered, but the fee may be paid in monthly installments if the court approves installment payments for that defendant. In determining the amount of the fee, the court shall consider the defendant's projected income and financial resources. The court shall use the following table of projected monthly income in determining the amount of the fee to be ordered:
Projected Monthly IncomeAmount of Fee
$1,0000.0-249.99 $ 10.00
$1,250.00-499.99 $ 10.00
$1,500.00-749.99 $ 25.00
$1,750.00-999.99 $ 40.00
$1,000.00 or more 5% of projected monthly income,
but not more than $135.00
The court may order a higher amount than indicated by the table, up to the maximum of $135.00 multiplied by the number of months of delay ordered but not more than 12 months, if the court determines that the defendant has sufficient assets or other financial resources to warrant the higher amount. If the court orders a higher amount, the amount and the reasons for ordering that amount shall be stated in the court order. The fee shall be collected as provided in section 25a of the corrections code of 1953, 1953 PA 232, MCL 791.225a. A person shall not be subject to more than 1 supervision fee at the same time. If a supervision fee is ordered for a person for any month or months during which that person already is subject to a supervision fee, the court shall waive the fee having the shorter remaining duration.
(4) This section does not apply to a juvenile placed on probation and committed under section 1(3) or (4) of chapter IX to an institution or agency described in the youth rehabilitation services act, 1974 PA 150, MCL 803.301 to 803.309.
Sec. 2. (1) Except as provided in section 2a of this chapter, if the defendant is convicted for an offense that is not a felony, the probation period shall not exceed 2 years. Except as provided in section 2a of this chapter, if the defendant is convicted of a felony, the probation period shall not exceed 5 years.
(2) The court shall by order, to be filed or entered in the cause as the court may direct by general rule or in each case, fix and determine the period and conditions of probation. The order is part of the record in the cause. The court may amend the order in form or substance at any time.
(3) A defendant who was placed on probation under section 1(4) of this chapter prior to the effective date of the act that amended this section is subject to the conditions of probation specified in section 3 of this chapter, including payment of a probation supervision fee as prescribed in section 3c of this chapter, and to revocation for violation of these conditions, but the probation period shall not be reduced other than by a revocation that results in imprisonment or as otherwise provided by law.
(4) If an individual is placed on probation for a listed offense enumerated in section 2 of the sex offenders registration act, 1994 PA 295, MCL 28.722, the individual's probation officer shall register the individual or accept the individual's registration as provided in that act.
(5) Subsection (1) does not apply to a juvenile placed on probation and committed under section 1(3) or (4) of chapter IX to an institution or agency described in the youth rehabilitation services act, 1974 PA 150, MCL 803.301 to 803.309.
CHAPTER XVII
Sec. 13m. This chapter applies to the following felonies enumerated in chapter 333 of the Michigan Compiled Laws:
| M.C.L. | Category | Class | Description | Stat Max | |
| 333.7341(8) | CS | G | Delivery or manufacture of imitation controlled | ||
| substance | 2 | ||||
| 333.7401(2)(a)(i) | CS | A | Delivery or manufacture of 1,000 or more grams of | ||
| certain schedule 1 or 2 controlled substances | Life | ||||
| 333.7401(2)(a)(ii) | CS | A | Delivery or manufacture of 450 or more but less | ||
| than 1,000 grams of certain schedule 1 or 2 | |||||
| controlled substances | 30 | ||||
| 333.7401(2)(a)(iii) | CS | B | Delivery or manufacture of 50 or more but less | ||
| than 450 grams of certain schedule 1 or 2 | |||||
| controlled substances | 20 | ||||
| 333.7401(2)(a)(iv) | CS | D | Delivery or manufacture of less than 50 grams of | ||
| certain schedule 1 or 2 controlled substances | 20 | ||||
| 333.7401(2)(b)(i) | CS | B | Delivery or manufacture of methamphetamine | 20 | |
| 333.7401(2)(b)(ii) | CS | E | Delivery or manufacture of certain schedule 1, 2, | ||
| or 3 controlled substances | 7 | ||||
| 333.7401(2)(c) | CS | F | Delivery or manufacture of schedule 4 controlled | ||
| substance | 4 | ||||
| 333.7401(2)(d)(i) | CS | C | Delivery or manufacture of 45 or more kilograms | ||
| of marijuana | 15 | ||||
| 333.7401(2)(d)(ii) | CS | D | Delivery or manufacture of 5 or more but less than | ||
| 45 kilograms of marijuana | 7 | ||||
| 333.7401(2)(d)(iii) | CS | F | Delivery or manufacture of less than 5 kilograms | ||
| or 20 plants of marijuana | 4 | ||||
| 333.7401(2)(e) | CS | G | Delivery or manufacture of schedule 5 controlled | ||
| substance | 2 | ||||
| 333.7401(2)(f) | CS | D | Delivery or manufacture of an official or counterfeit | ||
| prescription form | 20 | ||||
| 333.7401(2)(g) | CS | D | Delivery or manufacture of prescription or counterfeit | ||
| form (other than official) | 7 | ||||
| 333.7401a | Person | B | Delivering a controlled substance or GBL with intent | ||
| to commit criminal sexual conduct | 20 | ||||
| 333.7401b(3)(a) | CS | E | Delivery or manufacture of GBL | 7 | |
| 333.7401b(3)(b) | CS | G | Possession of GBL | 2 | |
| 333.7401c(2)(a) | CS | D | Operating or maintaining controlled substance | ||
| laboratory | 10 | ||||
| 333.7401c(2)(b) | CS | B | Operating or maintaining controlled substance | ||
| laboratory in presence of minor | 20 | ||||
| 333.7401c(2)(c) | CS | B | Operating or maintaining controlled substance | ||
| laboratory involving hazardous waste | 20 | ||||
| 333.7401c(2)(d) | CS | B | Operating or maintaining controlled substance | ||
| laboratory near certain places | 20 | ||||
| 333.7401c(2)(e) | CS | A | Operating or maintaining controlled substance | ||
| laboratory involving firearm or other harmful | |||||
| device | 25 | ||||
| 333.7402(2)(a) | CS | D | Delivery or manufacture of certain imitation | ||
| controlled substances | 10 | ||||
| 333.7402(2)(b) | CS | E | Delivery or manufacture of schedule 1, 2, or 3 | ||
| imitation controlled substance | 5 | ||||
| 333.7402(2)(c) | CS | F | Delivery or manufacture of imitation schedule 4 | ||
| controlled substance | 4 | ||||
| 333.7402(2)(d) | CS | G | Delivery or manufacture of imitation schedule 5 | ||
| controlled substance | 2 | ||||
| 333.7402(2)(e) | CS | C | Delivery or manufacture of controlled substance | ||
| analogue | 15 | ||||
| 333.7403(2)(a)(i) | CS | A | Possession of 1,000 or more grams of certain schedule | ||
| 1 or 2 controlled substances | Life | ||||
| 333.7403(2)(a)(ii) | CS | A | Possession of 450 or more but less than 1,000 grams | ||
| of certain schedule 1 or 2 controlled substances | 30 | ||||
| 333.7403(2)(a)(iii) | CS | B | Possession of 50 or more but less than 450 grams | ||
| of certain schedule 1 or 2 controlled substances | 20 | ||||
| 333.7403(2)(a)(iv) | CS | G | Possession of 25 or more but less than 50 grams | ||
| of certain schedule 1 or 2 controlled substances | 4 | ||||
| 333.7403(2)(a)(v) | CS | G | Possession of less than 25 grams of certain schedule | ||
| 1 or 2 controlled substances | 4 | ||||
| 333.7403(2)(b)(i) | CS | D | Possession of methamphetamine | 10 | |
| 333.7403(2)(b)(ii) | CS | G | Possession of certain schedule 1, 2, 3, or 4 controlled | ||
| substances or controlled substances analogue | 2 | ||||
| 333.7403(2)(e) | CS | H | Possession of official prescription form | 1 | |
| 333.7405(a) | CS | G | Controlled substance violations by licensee | 2 | |
| 333.7405(b) | CS | G | Manufacturing or distribution violations by licensee | 2 | |
| 333.7405(c) | CS | G | Refusing lawful inspection | 2 | |
| 333.7405(d) | CS | G | Maintaining drug house | 2 | |
| 333.7407(1)(a) | CS | G | Controlled substance violations by licensee | 4 | |
| 333.7407(1)(b) | CS | G | Use of fictitious, revoked, or suspended license number | 4 | |
| 333.7407(1)(c) | CS | G | Obtaining controlled substance by fraud | 4 | |
| 333.7407(1)(d) | CS | G | False reports under controlled substance article | 4 | |
| 333.7407(1)(e) | CS | G | Possession of counterfeiting implements | 4 | |
| 333.7407(1)(f) | CS | F | Disclosing or obtaining prescription information | 4 | |
| 333.7407(1)(g) | CS | F | Possession of counterfeit prescription form | 4 | |
| 333.7407(2) | CS | G | Refusing to furnish records under controlled substance | ||
| article | 4 | ||||
| 333.7410a | CS | G | Controlled substance offense or offense involving GBL | ||
| in or near a park | 2 | ||||
Sec. 43. (1) Offense variable 13 is continuing pattern of criminal behavior. Score offense variable 13 by determining which of the following apply and by assigning the number of points attributable to the one that has the highest number of points:
(a) The offense was part of a pattern of felonious criminal activity involving 3 or more sexual
penetrations against a person or persons less than 13 years of age 50 points
(b) The offense was part of a pattern of felonious criminal activity involving 3 or more crimes
against a person 25 points
(c) The offense was part of a pattern of felonious criminal activity involving a combination of
3 or more crimes against a person or property or a violation of section 7401(2)(a)(i) to (iii) or
section 7403(2)(a)(i) to (iii) 10 points
(d) The offense was part of a pattern of felonious criminal activity directly related to membership
in an organized criminal group 10 points
(e) The offense was part of a pattern of felonious criminal activity involving a combination of 3 or
more violations of section 7401(2)(a)(i) to (iii) or section 7403(2)(a)(i) to (iii) 10 points
(f) The offense was part of a pattern of felonious criminal activity involving 3 or more crimes
against property 5 points
(g) No pattern of felonious criminal activity existed 0 points
(2) All of the following apply to scoring offense variable 13:
(a) For determining the appropriate points under this variable, all crimes within a 5-year period, including the sentencing offense, shall be counted regardless of whether the offense resulted in a conviction.
(b) The presence or absence of multiple offenders, the age of the offenders, or the degree of sophistication of the organized criminal group is not as important as the fact of the group's existence, which may be reasonably inferred from the facts surrounding the sentencing offense.
(c) Except for offenses related to membership in an organized criminal group, do not score conduct scored in offense variable 11 or 12.
(d) Score 50 points only if the sentencing offense is first degree criminal sexual conduct.
(e) Do not count more than 1 controlled substance offense arising out of the criminal episode for which the person is being sentenced.
(f) Do not count more than 1 crime involving the same controlled substance. For example, do not count conspiracy and a substantive offense involving the same amount of controlled substances or possession and delivery of the same amount of controlled substances.
Sec. 45. (1) Offense variable 15 is aggravated controlled substance offenses. Score offense variable 15 by determining which of the following apply and by assigning the number of points attributable to the one that has the highest number of points:
(a) The offense involved the manufacture, creation, delivery, possession, or possession with intent
to manufacture, create, or deliver of 1,000 or more grams of any mixture containing a controlled
substance classified in schedule 1 or 2 that is a narcotic drug or a drug described in section 7214(a)(iv) 100 points
(b) The offense involved the manufacture, creation, delivery, possession, or possession with intent to
manufacture, create, or deliver of 450 grams or more but less than 1,000 grams of any mixture containing
a controlled substance classified in schedule 1 or 2 that is a narcotic drug or a drug described in
section 7214(a)(iv) 75 points
(c) The offense involved the manufacture, creation, delivery, possession, or possession with intent to
manufacture, create, or deliver of 50 or more grams but less than 450 grams of any mixture containing a
controlled substance classified in schedule 1 or 2 that is a narcotic drug or a drug described in
section 7214(a)(iv) 50 points
(d) The offense involved the sale or delivery of a controlled substance other than marihuana or a mixture containing a controlled substance other than marihuana by the offender who was 18 years of age or older
to a minor who was 3 or more years younger than the offender 25 points
(e) The offense involved the sale, delivery, or possession with intent to sell or deliver 45 kilograms or
more of marihuana or 200 or more of marihuana plants 10 points
(f) The offense is a violation of section 7401(2)(a)(i) to (iii) pertaining to a controlled substance classified
in schedule 1 or 2 that is a narcotic drug or a drug described in section 7214(a)(iv) and was committed
in a minor's abode, settled home, or domicile, regardless of whether the minor was present 10 points
(g) The offense involved the delivery or possession with intent to deliver marihuana or any other
controlled substance or a counterfeit controlled substance or possession of controlled substances or
counterfeit controlled substances having a value or under such circumstances as to indicate trafficking 5 points
(h) The offense was not an offense described in subdivisions (a) through (g) 0 points
(2) As used in this section:
(a) "Deliver" means the actual or constructive transfer of a controlled substance from 1 individual to another regardless of remuneration.
(b) "Minor" means an individual 17 years of age or less.
(c) "Trafficking" means the sale or delivery of controlled substances or counterfeit controlled substances on a continuing basis to 1 or more other individuals for further distribution.
Sec. 57. (1) Prior record variable 7 is subsequent or concurrent felony convictions. Score prior record variable 7 by determining which of the following apply and by assigning the number of points attributable to the one that has the highest number of points:
(a) The offender has 2 or more subsequent or concurrent convictions 20 points
(b) The offender has 1 subsequent or concurrent conviction 10 points
(c) The offender has no subsequent or concurrent convictions 0 points
(2) All of the following apply to scoring record variable 7:
(a) Score the appropriate point value if the offender was convicted of multiple felony counts or was convicted of a felony after the sentencing offense was committed.
(b) Do not score a felony firearm conviction in this variable.
(c) Do not score a concurrent felony conviction if a mandatory consecutive sentence or a consecutive sentence imposed under section 7401(3) of the public health code, 1978 PA 368, MCL 333.7401, will result from that conviction.
Enacting section 1. This amendatory act takes effect March 1, 2003.
Enacting section 2. This amendatory act does not take effect unless all of the following bills of the 91st Legislature are enacted into law:
(a) House Bill No. 5394.
(b) House Bill No. 6510.
This act is ordered to take immediate effect.
Clerk of the House of Representatives.
Secretary of the Senate.
Approved
Governor.