October 22, 2014, Introduced by Senators CASPERSON, JOHNSON, ANANICH, PROOS, YOUNG and ANDERSON and referred to the Committee on Judiciary.
A bill to amend 1927 PA 175, entitled
"The code of criminal procedure,"
by amending section 3 of chapter XI (MCL 771.3), as amended by 2012
PA 612, and by adding section 1m to chapter IX.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
CHAPTER IX
Sec. 1m. (1) If a defendant enters a plea of guilty or nolo
contendere or if a court determines after a hearing or trial that
the defendant is guilty, at the time of sentencing or at the time
entry of judgment of guilt is deferred pursuant to statute or
sentencing is delayed pursuant to statute, before imposing a fine,
cost, fee, or assessment, the court shall determine the defendant's
ability to pay any fine, cost, fee, or assessment imposed.
(2) In making the determination required under subsection (1),
the court shall consider all of the following:
(a) The defendant's income from employment or any other
source.
(b) The defendant's receipt or entitlement to public
assistance.
(c) Property owned by the defendant or in which the defendant
has an economic interest.
(d) The defendant's outstanding obligations.
(e) The defendant's living expenses.
(f) The number and ages of the defendant's dependents.
(g) The defendant's employment and job training history.
(h) The defendant's level of education.
(3) A court shall not impose fines, costs, fees, or
assessments that a defendant would be unable to pay without
substantial financial hardship to the defendant or to the
defendant's dependents. There is a rebuttable presumption that
there would be substantial financial hardship under this subsection
if the defendant receives public assistance, including under the
food assistance program, temporary assistance for needy families,
medicaid, or disability insurance, resides in public housing, or
earns an income less than 140% of the federal poverty guideline.
There is also a rebuttable presumption that there would be
substantial financial hardship under this subsection if the
defendant is currently serving a sentence in a correctional
institution or is receiving residential treatment in a mental
health or substance use facility.
(4) A court that orders the payment of fines, costs, fees, or
assessments under this section shall order the payment to be made
in installment amounts, at intervals, and over a period of time
that the court determines will not result in substantial financial
hardship to the defendant or to the defendant's dependents,
considering the factors enumerated in subsection (2). This
subsection does not prohibit an order for a 1-time payment if the
payment will not result in a substantial financial hardship to the
defendant or the defendant's dependents.
(5) This section does not limit the power of a court to order
a defendant to participate in community service, a work program, or
other similar activity.
(6) This section does not apply to any of the following:
(a) Victim restitution under section 1a of this chapter or the
William Van Regenmorter crime victim's rights act, 1985 PA 87, MCL
780.751 to 780.834.
(b) An assessment for crime victim's rights services under
section 5 of 1989 PA 196, MCL 780.905.
(c) The minimum state cost under section 1j of this chapter or
under section 18m of chapter XIIA of the probate code of 1939, 1939
PA 288, MCL 712A.18m.
(d) A supervision fee imposed under section 13 of chapter II
or section 1, 3(9), or 3c of chapter XI.
(e) The cost of substance abuse screening ordered under either
of the following:
(i) Section 625b of the Michigan vehicle code, 1949 PA 300, MCL
257.625b.
(ii) Section 7411 of the public health code, 1978 PA 368, MCL
333.7411.
(f) The cost of testing for certain diseases under section
5129 of the public health code, 1978 PA 368, MCL 333.5129.
CHAPTER XI
Sec.
3. (1) The A sentence of probation under this chapter
shall include all of the following conditions:
(a) During the term of his or her probation, the probationer
shall not violate any criminal law of this state, the United
States, or another state or any ordinance of any municipality in
this state or another state.
(b) During the term of his or her probation, the probationer
shall
not leave the this state without the consent of the court
granting his or her application for probation.
(c) The probationer shall report to the probation officer,
either in person or in writing, monthly or as often as the
probation officer requires. This subdivision 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.
(d) If sentenced in circuit court, the probationer shall pay a
probation supervision fee as prescribed in section 3c of this
chapter.
(e) The probationer shall pay restitution to the victim of the
defendant's course of conduct giving rise to the conviction or to
the victim's estate as provided in chapter IX. An order for payment
of restitution may be modified and shall be enforced as provided in
chapter IX.
(f) The probationer shall pay an assessment ordered under
section 5 of 1989 PA 196, MCL 780.905.
(g) The probationer shall pay the minimum state cost
prescribed by section 1j of chapter IX.
(h) If the probationer is required to be registered under the
sex offenders registration act, 1994 PA 295, MCL 28.721 to 28.736,
the probationer shall comply with that act.
(2) As a condition of probation, the court may require the
probationer to do 1 or more of the following:
(a) Be imprisoned in the county jail for not more than 12
months
at the time or intervals, that which may be consecutive or
nonconsecutive, within the probation as the court determines.
However, the period of confinement shall not exceed the maximum
period of imprisonment provided for the offense charged if the
maximum period is less than 12 months. The court may permit day
parole as authorized under 1962 PA 60, MCL 801.251 to 801.258. The
court may, subject to sections 3d and 3e of this chapter, permit
the individual to be released from jail to work at his or her
existing job or to attend a school in which he or she is enrolled
as a student. This subdivision 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.
(b)
Pay As provided in section
1m of chapter IX, pay
immediately or within the period of his or her probation a fine
imposed when placed on probation.
(c) Pay costs pursuant to subsection (5).
(d) Pay any assessment ordered by the court as provided in
section 1m of chapter IX, other than an assessment described in
subsection (1)(f).
(e) Engage in community service.
(f)
Agree to pay by wage assignment any restitution , or,
subject to section 1m of chapter IX, any assessment, fine, or cost
imposed by the court.
(g) Participate in inpatient or outpatient drug treatment or,
beginning January 1, 2005, participate in a drug treatment court
under chapter 10A of the revised judicature act of 1961, 1961 PA
236, MCL 600.1060 to 600.1084.
(h) Participate in mental health treatment.
(i) Participate in mental health or substance abuse
counseling.
(j) Participate in a community corrections program.
(k) Be under house arrest.
(l) Be subject to electronic monitoring.
(m) Participate in a residential probation program.
(n) Satisfactorily complete a program of incarceration in a
special alternative incarceration unit as provided in section 3b of
this chapter.
(o) Be subject to conditions reasonably necessary for the
protection of 1 or more named persons.
(p) Reimburse the county for expenses incurred by the county
in connection with the conviction for which probation was ordered
as provided in the prisoner reimbursement to the county act, 1984
PA 118, MCL 801.81 to 801.93.
(q) Complete his or her high school education or obtain the
equivalency of a high school education in the form of a general
education development (GED) certificate.
(3) The court may impose other lawful conditions of probation
as the circumstances of the case require or warrant or as in its
judgment are proper.
(4) If an order or amended order of probation contains a
condition for the protection of 1 or more named persons as provided
in subsection (2)(o), the court or a law enforcement agency within
the court's jurisdiction shall enter the order or amended order
into the law enforcement information network. If the court rescinds
the order or amended order or the condition, the court shall remove
the order or amended order or the condition from the law
enforcement information network or notify that law enforcement
agency and the law enforcement agency shall remove the order or
amended order or the condition from the law enforcement information
network.
(5) If the court requires the probationer to pay costs under
subsection (2), the costs shall be limited to expenses specifically
incurred in prosecuting the defendant or providing legal assistance
to the defendant and supervision of the probationer.
(6) If the court imposes costs under subsection (2) as part of
a sentence of probation, all of the following apply:
(a) The court shall not require a probationer to pay costs
under subsection (2) unless the court determines under section 1m
of
chapter IX that the probationer is or
will be able to pay them
the
costs during the term of probation. In
determining the amount
and
method of payment of costs under subsection (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
subsection (1)(g) or (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.
(7) If a probationer is required to pay costs as part of a
sentence of probation, the court may require payment to be made
immediately or the court may provide for payment to be made within
a specified period of time or in specified installments as provided
in section 1m of chapter IX.
(8) If a probationer is ordered to pay costs as part of a
sentence of probation, compliance with that order shall be a
condition of probation. The court may revoke probation if the
probationer
fails to comply with the order and if the probationer
has
not made a good faith effort to comply with the order. In
determining
whether to revoke probation, the court shall consider
the
probationer's employment status, earning ability, and financial
resources,
the willfulness of the probationer's failure to pay, and
any
other special circumstances that may have a bearing on the
probationer's
ability to pay. as provided
in section 1o of chapter
IX. The proceedings provided for in this subsection are in addition
to those provided in section 4 of this chapter.
(9) If entry of judgment is deferred in the circuit court, the
court shall require the individual to pay a supervision fee in the
same manner as is prescribed for a delayed sentence under section
1(3) of this chapter, shall require the individual to pay the
minimum state costs prescribed by section 1j of chapter IX, and may
impose, as applicable, the conditions of probation described in
subsections (1), (2), and (3).
(10) If sentencing is delayed or entry of judgment is deferred
in the district court or in a municipal court, the court shall
require the individual to pay the minimum state costs prescribed by
section 1j of chapter IX and may impose, as applicable, the
conditions of probation described in subsections (1), (2), and (3).
Enacting section 1. This amendatory act does not take effect
unless all of the following bills of the 97th Legislature are
enacted into law:
(a) Senate Bill No. 1113.
(b) Senate Bill No. 1114.