HB-5135, As Passed House, October 12, 2005
September 7, 2005, Introduced by Rep. Van Regenmorter and referred to the Committee on Judiciary.
A bill to amend 1927 PA 175, entitled
"The code of criminal procedure,"
by amending sections 12, 13, and 20a of chapter VIII, sections 10,
11, and 12 of chapter IX, and section 3 of chapter XI (MCL 768.12,
768.13, 768.20a, 769.10, 769.11, 769.12, and 771.3), section 20a of
chapter VIII as amended by 1983 PA 42, sections 10, 11, and 12 of
chapter IX as amended by 1998 PA 317, and section 3 of chapter XI
as amended by 2004 PA 330; and to repeal acts and parts of acts.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
CHAPTER VIII
Sec.
12. (1) Any A
person who is put on trial for an
offense
which
that is not punishable by death or life imprisonment
shall
be allowed to challenge peremptorily 5 of the persons drawn to
serve
as jurors. and no more; and the prosecuting officers on
behalf
of the people shall be allowed to challenge peremptorily in
such
cases 5 of such jurors and no more. In cases
a case
involving
2 or more defendants who are being jointly tried for
such
an offense that
is not punishable by death or life
imprisonment, each of
said the defendants
shall be allowed to
challenge
peremptorily 5 persons returned as jurors. and no more;
and
the The prosecuting officers on behalf of the people shall
be
allowed
to challenge 5 jurors peremptorily
as many times 5 of the
persons
returned as jurors as there may be defendants being so
jointly
tried. if a defendant is
being tried alone or, if
defendants are tried jointly, shall be allowed the total number of
peremptory challenges to which all the defendants are entitled.
(2) On motion and a showing of good cause, the court may grant
1 or more of the parties an increased number of peremptory
challenges. The number of additional peremptory challenges the
court grants may cause the various parties to have unequal numbers
of peremptory challenges.
Sec.
13. (1) Any A
person who is put
on trial being tried
alone for an offense punishable by death or imprisonment for life,
shall
be allowed to challenge peremptorily
20 12 of
the persons
drawn
to serve as jurors. , and no more; and the prosecuting
officers
on behalf of the people shall be allowed to challenge
peremptorily
15 of such persons, and no more. In cases involving 2
or
more defendants, who are being jointly tried for such an
offense,
each of said defendants shall be allowed to challenge
peremptorily
20 persons returned as jurors, and no more; and the
prosecuting
officers on behalf of the people shall be allowed to
challenge
peremptorily as many times 15 of the persons returned as
jurors
as there may be defendants being so jointly tried. In a
case punishable by death or imprisonment for life that involves 2
or more defendants, a defendant shall be allowed the following
number of peremptory challenges:
(a) Two defendants – 10 each.
(b) Three defendants – 9 each.
(c) Four defendants – 8 each.
(d) Five or more defendants – 7 each.
(2) In a case punishable by death or imprisonment for life,
the prosecuting officers on behalf of the people shall be allowed
to challenge peremptorily 12 jurors if a defendant is being tried
alone or, if defendants are tried jointly, shall be allowed the
total number of peremptory challenges to which all the defendants
are entitled.
(3) On motion and a showing of good cause, the court may grant
1 or more of the parties an increased number of peremptory
challenges. The number of additional peremptory challenges the
court grants may cause the various parties to have unequal numbers
of peremptory challenges.
Sec. 20a. (1) If a defendant in a felony case proposes to
offer in his or her defense testimony to establish his or her
insanity at the time of an alleged offense, the defendant shall
file and serve upon the court and the prosecuting attorney a notice
in writing of his or her intention to assert the defense of
insanity not less than 30 days before the date set for the trial of
the case, or at such other time as the court directs.
(2) Upon receipt of a notice of an intention to assert the
defense of insanity, a court shall order the defendant to undergo
an examination relating to his or her claim of insanity by
personnel of the center for forensic psychiatry or by other
qualified personnel, as applicable, for a period not to exceed 60
days from the date of the order. When the defendant is to be held
in jail pending trial, the center or the other qualified personnel
may perform the examination in the jail, or may notify the sheriff
to transport the defendant to the center or facility used by the
qualified personnel for the examination, and the sheriff shall
return the defendant to the jail upon completion of the
examination. When the defendant is at liberty pending trial, on
bail or otherwise, the defendant shall make himself or herself
available for the examination at the place and time established by
the center or the other qualified personnel. If the defendant,
after being notified of the place and time of the examination,
fails to make himself or herself available for the examination, the
court may, without a hearing, order his or her commitment to the
center.
(3)
The defendant may, at his or her own expense, or if
indigent,
at the expense of the county, secure an independent
psychiatric evaluation by a clinician of his or her choice on the
issue of his or her insanity at the time the alleged offense was
committed. If the defendant is indigent, the court may, upon
showing of good cause, order that the county pay for an independent
psychiatric evaluation. The defendant shall notify the prosecuting
attorney at least 5 days before the day scheduled for the
independent evaluation that he or she intends to secure such an
evaluation. The prosecuting attorney may similarly obtain
independent psychiatric evaluation. A clinician secured by an
indigent
defendant shall be is entitled to receive a
reasonable
fee as approved by the court.
(4) The defendant shall fully cooperate in his or her
examination by personnel of the center for forensic psychiatry or
by other qualified personnel, and by any other independent
examiners for the defense and prosecution. If he or she fails to
cooperate, and that failure is established to the satisfaction of
the court at a hearing prior to trial, the defendant shall be
barred from presenting testimony relating to his or her insanity at
the trial of the case.
(5) Statements made by the defendant to personnel of the
center for forensic psychiatry, to other qualified personnel, or to
any independent examiner during an examination shall not be
admissible or have probative value in court at the trial of the
case on any issues other than his or her mental illness or insanity
at the time of the alleged offense.
(6) Upon conclusion of the examination, the center for
forensic psychiatry or the other qualified personnel, and any
independent examiner, shall prepare a written report and shall
submit the report to the prosecuting attorney and defense counsel.
The report shall contain:
(a) The clinical findings of the center, the qualified
personnel, or any independent examiner.
(b) The facts, in reasonable detail, upon which the findings
were based.
(c) The opinion of the center or qualified personnel, and the
independent examiner on the issue of the defendant's insanity at
the time the alleged offense was committed and whether the
defendant was mentally ill or mentally retarded at the time the
alleged offense was committed.
(7) Within 10 days after the receipt of the report from the
center for forensic psychiatry or from the qualified personnel, or
within 10 days after the receipt of the report of an independent
examiner secured by the prosecution, whichever occurs later, but
not
later than 5 days before the trial of the case, or at such
other
another time as the court directs, the prosecuting
attorney shall file and serve upon the defendant a notice of
rebuttal of the defense of insanity which shall contain the names
of the witnesses whom the prosecuting attorney proposes to call in
rebuttal.
(8) The report of the center for forensic psychiatry, the
qualified personnel, or any independent examiner may be admissible
in evidence upon the stipulation of the prosecution and defense.
(9)
As used in this section, "qualified personnel" means
either
of the following:
(a)
Personnel personnel meeting standards determined by the
department
of mental community
health under rules promulgated
pursuant
to Act No. 306 of the Public Acts of 1969, being
sections
24.301
to 24.315 of the Michigan Compiled Laws.
(b)
Until the rules to which subdivision (a) refers, excluding
emergency
rules, are in effect, personnel of the psychiatric clinic
of
the recorder's court of the city of Detroit. the administrative
procedures act of 1969, 1969 PA 306, MCL 24.201 to 24.328.
CHAPTER IX
Sec. 10. (1) If a person has been convicted of a felony or an
attempt to commit a felony, whether the conviction occurred in this
state or would have been for a felony or attempt to commit a felony
in this state if obtained in this state, and that person commits a
subsequent felony within this state, the person shall be punished
upon conviction of the subsequent felony and sentencing under
section 13 of this chapter as follows:
(a) If the subsequent felony is punishable upon a first
conviction by imprisonment for a term less than life, the court,
except as otherwise provided in this section or section 1 of
chapter XI, may place the person on probation or sentence the
person to imprisonment for a maximum term that is not more than 1-
1/2 times the longest term prescribed for a first conviction of
that offense or for a lesser term.
(b) If the subsequent felony is punishable upon a first
conviction by imprisonment for life, the court, except as otherwise
provided in this section or section 1 of chapter XI, may place the
person on probation or sentence the person to imprisonment for life
or for a lesser term.
(c) If the subsequent felony is a major controlled substance
offense, the person shall be punished as provided by part 74 of the
public health code, 1978 PA 368, MCL 333.7401 to 333.7461.
(2) If the court pursuant to this section imposes a sentence
of imprisonment for any term of years, the court shall fix the
length of both the minimum and maximum sentence within any
specified limits in terms of years or a fraction of a year and the
sentence so imposed shall be considered an indeterminate sentence.
The court shall not fix a maximum sentence that is less than the
maximum term for a first conviction.
(3) A conviction shall not be used to enhance a sentence under
this section if that conviction is used to enhance a sentence under
a statute that prohibits use of the conviction for further
enhancement under this section.
Sec. 11. (1) If a person has been convicted of any
combination of 2 or more felonies or attempts to commit felonies,
whether the convictions occurred in this state or would have been
for felonies or attempts to commit felonies in this state if
obtained in this state, and that person commits a subsequent felony
within this state, the person shall be punished upon conviction of
the subsequent felony and sentencing under section 13 of this
chapter as follows:
(a) If the subsequent felony is punishable upon a first
conviction by imprisonment for a term less than life, the court,
except as otherwise provided in this section or section 1 of
chapter XI, may sentence the person to imprisonment for a maximum
term that is not more than twice the longest term prescribed by law
for a first conviction of that offense or for a lesser term.
(b) If the subsequent felony is punishable upon a first
conviction by imprisonment for life, the court, except as otherwise
provided in this section or section 1 of chapter XI, may sentence
the person to imprisonment for life or for a lesser term.
(c) If the subsequent felony is a major controlled substance
offense, the person shall be punished as provided by part 74 of the
public health code, 1978 PA 368, MCL 333.7401 to 333.7461.
(2) If the court pursuant to this section imposes a sentence
of imprisonment for any term of years, the court shall fix the
length of both the minimum and maximum sentence within any
specified limits in terms of years or a fraction of a year, and the
sentence so imposed shall be considered an indeterminate sentence.
The court shall not fix a maximum sentence that is less than the
maximum term for a first conviction.
(3) A conviction shall not be used to enhance a sentence under
this section if that conviction is used to enhance a sentence under
a statute that prohibits use of the conviction for further
enhancement under this section.
Sec. 12. (1) If a person has been convicted of any
combination of 3 or more felonies or attempts to commit felonies,
whether the convictions occurred in this state or would have been
for felonies or attempts to commit felonies in this state if
obtained in this state, and that person commits a subsequent felony
within this state, the person shall be punished upon conviction of
the subsequent felony and sentencing under section 13 of this
chapter as follows:
(a) If the subsequent felony is punishable upon a first
conviction by imprisonment for a maximum term of 5 years or more or
for life, the court, except as otherwise provided in this section
or section 1 of chapter XI, may sentence the person to imprisonment
for life or for a lesser term.
(b) If the subsequent felony is punishable upon a first
conviction by imprisonment for a maximum term that is less than 5
years, the court, except as otherwise provided in this section or
section 1 of chapter XI, may sentence the person to imprisonment
for a maximum term of not more than 15 years.
(c) If the subsequent felony is a major controlled substance
offense, the person shall be punished as provided by part 74 of the
public health code, 1978 PA 368, MCL 333.7401 to 333.7461.
(2) If the court pursuant to this section imposes a sentence
of imprisonment for any term of years, the court shall fix the
length of both the minimum and maximum sentence within any
specified limits in terms of years or a fraction of a year, and the
sentence so imposed shall be considered an indeterminate sentence.
The court shall not fix a maximum sentence that is less than the
maximum term for a first conviction.
(3) A conviction shall not be used to enhance a sentence under
this section if that conviction is used to enhance a sentence under
a statute that prohibits use of the conviction for further
enhancement under this section.
(4) An offender sentenced under this section or section 10 or
11 of this chapter for an offense other than a major controlled
substance offense is not eligible for parole until expiration of
the following:
(a) For a prisoner other than a prisoner subject to
disciplinary time, the minimum term fixed by the sentencing judge
at the time of sentence unless the sentencing judge or a successor
gives written approval for parole at an earlier date authorized by
law.
(b) For a prisoner subject to disciplinary time, the minimum
term fixed by the sentencing judge.
(5) This section and sections 10 and 11 of this chapter are
not in derogation of other provisions of law that permit or direct
the imposition of a consecutive sentence for a subsequent felony.
(6) As used in this section, "prisoner subject to disciplinary
time" means that term as defined in section 34 of 1893 PA 118, MCL
800.34.
CHAPTER XI
Sec. 3. (1) The sentence of probation 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 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 28.732,
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, 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 permit a work or school release from jail. 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 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 other than an
assessment described in subsection (1)(f).
(e) Engage in community service.
(f) Agree to pay by wage assignment any restitution,
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 600.1082.
(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 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 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.
(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. The proceedings provided for in this
subsection are in addition to those provided in section 4 of this
chapter.
(9)
If sentencing 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. Section 3a of chapter X of the code of
criminal procedure, 1927 PA 175, MCL 770.3a, is repealed.