HB-5135, As Passed Senate, December 6, 2006

SENATE SUBSTITUTE FOR

HOUSE BILL NO. 5135

      A bill to amend 1927 PA 175, entitled

"The code of criminal procedure,"

by amending section 37a of chapter VII, sections 12, 13, and 20a

of chapter VIII, sections 1k, 10, 11, 12, and 13 of chapter IX,

section 3 of chapter XI, and sections 13j, 16y, 16z, 21, 51, 52,

53, and 54 of chapter XVII (MCL 767.37a, 768.12, 768.13, 768.20a,

769.1k, 769.10, 769.11, 769.12, 769.13, 771.3, 777.13j, 777.16y,

777.16z, 777.21, 777.51, 777.52, 777.53, and 777.54), section 37a

of chapter VII as added by 1994 PA 229, section 20a of chapter

VIII as amended by 1983 PA 42, section 1k of chapter IX as added

by 2005 PA 316, sections 10, 11, and 12 of chapter IX as amended

and sections 51, 52, and 53 of chapter XVII as added by 1998 PA

317, section 13 of chapter IX as amended by 1994 PA 110, section

3 of chapter XI as amended by 2004 PA 330, section 13j of chapter

XVII as added by 2002 PA 30, section 16y of chapter XVII as

amended by 2006 PA 166, section 16z of chapter XVII as amended by

2006 PA 62, and sections 21 and 54 of chapter XVII as amended by

2000 PA 279; and to repeal acts and parts of acts.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 1                           CHAPTER VII

 2        Sec. 37a. (1)  Unless the defendant requests physical

 3  presence before the court, a  A judge or district court

 4  magistrate may conduct initial criminal arraignments and  the

 5  setting of  set bail by 2-way  closed circuit television

 6  interactive video technology communication between a court

 7  facility and a prison, jail, or other place where a person is

 8  imprisoned or detained. A judge or district court magistrate may

 9  conduct initial criminal arraignments and  the setting of  set

10  bail on weekends, holidays, or at any time as determined by the

11  court.

12        (2) A 2-way  closed circuit television  interactive video

13  technology system used  pursuant to  under this section shall

14  enable the accused and the judge or district court magistrate to

15  see, hear, and communicate with each other simultaneously, and

16  shall enable defense counsel and the prosecuting attorney, if

17  present, to be heard by and to communicate simultaneously with

18  the accused, the judge or district court magistrate, and opposing

19  counsel.

20        (3) Except as otherwise provided by law, the public shall

21  have access to the courtroom or other location,  with the ability

 1  that allows them to view and hear the proceedings.

 2        (4) If proceedings conducted  pursuant to  under this

 3  section are not recorded by an individual certified by the state

 4  court administrative office, the court shall record and maintain

 5  an original audiovisual recording of the entire proceedings. A

 6  recording made  pursuant to  under this subsection shall become

 7  part of the court record.

 8        (5) This act does not prohibit the use of 2-way  closed

 9  circuit television  interactive video technology for arraignments

10  on the information, criminal pretrial hearings, criminal pleas,

11  sentencing hearings for misdemeanor violations cognizable in the

12  district court, show cause hearings, or other criminal

13  proceedings, to the extent the Michigan supreme court has

14  authorized that use.

15                           CHAPTER VIII

16        Sec. 12. (1)  Any  A person who is put on trial for an

17  offense  which  that is not punishable by death or life

18  imprisonment shall be allowed to challenge peremptorily 5 of the

19  persons drawn to serve as jurors.  and no more; and the

20  prosecuting officers on behalf of the people shall be allowed to

21  challenge peremptorily in such cases 5 of such jurors and no

22  more. In  cases  a case involving 2 or more defendants who are

23  being jointly tried for  such an offense that is not punishable

24  by death or life imprisonment, each of  said  the defendants

25  shall be allowed to challenge peremptorily 5 persons returned as

26  jurors.  and no more; and the  The prosecuting officers on behalf

27  of the people shall be allowed to challenge 5 jurors peremptorily

 1  as many times 5 of the persons returned as jurors as there may be

 2  defendants being so jointly tried.  if a defendant is being tried

 3  alone or, if defendants are tried jointly, shall be allowed the

 4  total number of peremptory challenges to which all the defendants

 5  are entitled.

 6        (2) On motion and a showing of good cause, the court may

 7  grant 1 or more of the parties an increased number of peremptory

 8  challenges. The number of additional peremptory challenges the

 9  court grants may cause the various parties to have unequal

10  numbers of peremptory challenges.

11        Sec. 13. (1)  Any  A person who is  put on trial  being

12  tried alone for an offense punishable by death or imprisonment

13  for life, shall be allowed to challenge peremptorily  20  12 of

14  the persons drawn to serve as jurors.  , and no more; and the

15  prosecuting officers on behalf of the people shall be allowed to

16  challenge peremptorily 15 of such persons, and no more. In cases

17  involving 2 or more defendants, who are being jointly tried for

18  such an offense, each of said defendants shall be allowed to

19  challenge peremptorily 20 persons returned as jurors, and no

20  more; and the prosecuting officers on behalf of the people shall

21  be allowed to challenge peremptorily as many times 15 of the

22  persons returned as jurors as there may be defendants being so

23  jointly tried.  In a case punishable by death or imprisonment for

24  life that involves 2 or more defendants, a defendant shall be

25  allowed the following number of peremptory challenges:

26        (a) Two defendants – 10 each.

27        (b) Three defendants – 9 each.

 1        (c) Four defendants – 8 each.

 2        (d) Five or more defendants – 7 each.

 3        (2) In a case punishable by death or imprisonment for life,

 4  the prosecuting officers on behalf of the people shall be allowed

 5  to challenge peremptorily 12 jurors if a defendant is being tried

 6  alone or, if defendants are tried jointly, shall be allowed the

 7  total number of peremptory challenges to which all the defendants

 8  are entitled.

 9        (3) On motion and a showing of good cause, the court may

10  grant 1 or more of the parties an increased number of peremptory

11  challenges. The number of additional peremptory challenges the

12  court grants may cause the various parties to have unequal

13  numbers of peremptory challenges.

14        Sec. 20a. (1) If a defendant in a felony case proposes to

15  offer in his or her defense testimony to establish his or her

16  insanity at the time of an alleged offense, the defendant shall

17  file and serve upon the court and the prosecuting attorney a

18  notice in writing of his or her intention to assert the defense

19  of insanity not less than 30 days before the date set for the

20  trial of the case, or at such other time as the court directs.

21        (2) Upon receipt of a notice of an intention to assert the

22  defense of insanity, a court shall order the defendant to undergo

23  an examination relating to his or her claim of insanity by

24  personnel of the center for forensic psychiatry or by other

25  qualified personnel, as applicable, for a period not to exceed 60

26  days from the date of the order. When the defendant is to be held

27  in jail pending trial, the center or the other qualified

 1  personnel may perform the examination in the jail, or may notify

 2  the sheriff to transport the defendant to the center or facility

 3  used by the qualified personnel for the examination, and the

 4  sheriff shall return the defendant to the jail upon completion of

 5  the examination. When the defendant is at liberty pending trial,

 6  on bail or otherwise, the defendant shall make himself or herself

 7  available for the examination at the place and time established

 8  by the center or the other qualified personnel. If the defendant,

 9  after being notified of the place and time of the examination,

10  fails to make himself or herself available for the examination,

11  the court may, without a hearing, order his or her commitment to

12  the center.

13        (3) The defendant may, at his or her own expense,  or if

14  indigent, at the expense of the county, secure an independent

15  psychiatric evaluation by a clinician of his or her choice on the

16  issue of his or her insanity at the time the alleged offense was

17  committed. If the defendant is indigent, the court may, upon

18  showing of good cause, order that the county pay for an

19  independent psychiatric evaluation. The defendant shall notify

20  the prosecuting attorney at least 5 days before the day scheduled

21  for the independent evaluation that he or she intends to secure

22  such an evaluation. The prosecuting attorney may similarly obtain

23  independent psychiatric evaluation. A clinician secured by an

24  indigent defendant  shall be  is entitled to receive a reasonable

25  fee as approved by the court.

26        (4) The defendant shall fully cooperate in his or her

27  examination by personnel of the center for forensic psychiatry or

 1  by other qualified personnel, and by any other independent

 2  examiners for the defense and prosecution. If he or she fails to

 3  cooperate, and that failure is established to the satisfaction of

 4  the court at a hearing prior to trial, the defendant shall be

 5  barred from presenting testimony relating to his or her insanity

 6  at the trial of the case.

 7        (5) Statements made by the defendant to personnel of the

 8  center for forensic psychiatry, to other qualified personnel, or

 9  to any independent examiner during an examination shall not be

10  admissible or have probative value in court at the trial of the

11  case on any issues other than his or her mental illness or

12  insanity at the time of the alleged offense.

13        (6) Upon conclusion of the examination, the center for

14  forensic psychiatry or the other qualified personnel, and any

15  independent examiner, shall prepare a written report and shall

16  submit the report to the prosecuting attorney and defense

17  counsel. The report shall contain:

18        (a) The clinical findings of the center, the qualified

19  personnel, or any independent examiner.

20        (b) The facts, in reasonable detail, upon which the findings

21  were based.

22        (c) The opinion of the center or qualified personnel, and

23  the independent examiner on the issue of the defendant's insanity

24  at the time the alleged offense was committed and whether the

25  defendant was mentally ill or mentally retarded at the time the

26  alleged offense was committed.

27        (7) Within 10 days after the receipt of the report from the

 1  center for forensic psychiatry or from the qualified personnel,

 2  or within 10 days after the receipt of the report of an

 3  independent examiner secured by the prosecution, whichever occurs

 4  later, but not later than 5 days before the trial of the case, or

 5  at  such other  another time  as the court directs, the

 6  prosecuting attorney shall file and serve upon the defendant a

 7  notice of rebuttal of the defense of insanity which shall contain

 8  the names of the witnesses whom the prosecuting attorney proposes

 9  to call in rebuttal.

10        (8) The report of the center for forensic psychiatry, the

11  qualified personnel, or any independent examiner may be

12  admissible in evidence upon the stipulation of the prosecution

13  and defense.

14        (9) As used in this section, "qualified personnel" means

15  either of the following:

16        (a) Personnel  personnel meeting standards determined by the

17  department of  mental  community health under rules promulgated

18  pursuant to  Act No. 306 of the Public Acts of 1969, being

19  sections 24.301 to 24.315 of the Michigan Compiled Laws.

20        (b) Until the rules to which subdivision (a) refers,

21  excluding emergency rules, are in effect, personnel of the

22  psychiatric clinic of the recorder's court of the city of

23  Detroit.  the administrative procedures act of 1969, 1969 PA 306,

24  MCL 24.201 to 24.328.

25                            CHAPTER IX

26        Sec. 1k. (1) If a defendant enters a plea of guilty or nolo

27  contendere or if the court determines after a hearing or trial

 1  that the defendant is guilty, both of the following apply at the

 2  time of the sentencing or at the time entry of judgment of guilt

 3  is deferred pursuant to statute or sentencing is delayed pursuant

 4  to statute:

 5        (a) The court shall impose the minimum state costs as set

 6  forth in section 1j of this chapter.

 7        (b) The court may impose any or all of the following:

 8        (i) Any fine.

 9        (ii) Any cost in addition to the minimum state cost set forth

10  in subdivision (a).

11        (iii) The expenses of providing legal assistance to the

12  defendant.

13        (iv) Any assessment authorized by law.

14        (v) Reimbursement under section 1f of this chapter.

15        (2) In addition to any fine, cost, or assessment imposed

16  under subsection (1), the court may order the defendant to pay

17  any additional costs incurred in compelling the defendant's

18  appearance.

19  (3)  (2) Subsection (1) applies regardless of whether

20  Subsections (1) and (2) apply even if the defendant is placed on

21  probation, probation is revoked, or the defendant is discharged

22  from probation.

23  (4)  (3) The court may require the defendant to pay any

24  fine, cost, or assessment ordered to be paid under this section

25  by wage assignment.

26  (5)  (4) The court may provide for the amounts imposed

27  under this section to be collected at any time.

 1        (6) Except as otherwise provided by law, the court may apply

 2  payments received on behalf of a defendant that exceed the total

 3  of any fine, cost, fee, or other assessment imposed in the case

 4  to any fine, cost, fee, or assessment that the same defendant

 5  owes in any other case.

 6        Sec. 10. (1) If a person has been convicted of a felony or

 7  an attempt to commit a felony, whether the conviction occurred in

 8  this state or would have been for a felony or attempt to commit a

 9  felony in this state if obtained in this state, and that person

10  commits a subsequent felony within this state, the person shall

11  be punished upon conviction of the subsequent felony and

12  sentencing under section 13 of this chapter as follows:

13        (a) If the subsequent felony is punishable upon a first

14  conviction by imprisonment for a term less than life, the court,

15  except as otherwise provided in this section or section 1 of

16  chapter XI, may place the person on probation or sentence the

17  person to imprisonment for a maximum term that is not more than

18  1-1/2 times the longest term prescribed for a first conviction of

19  that offense or for a lesser term.

20        (b) If the subsequent felony is punishable upon a first

21  conviction by imprisonment for life, the court, except as

22  otherwise provided in this section or section 1 of chapter XI,

23  may place the person on probation or sentence the person to

24  imprisonment for life or for a lesser term.

25        (c) If the subsequent felony is a major controlled substance

26  offense, the person shall be punished as provided by part 74 of

27  the public health code, 1978 PA 368, MCL 333.7401 to 333.7461.

 1        (2) If the court pursuant to this section imposes a sentence

 2  of imprisonment for any term of years, the court shall fix the

 3  length of both the minimum and maximum sentence within any

 4  specified limits in terms of years or a fraction of a year and

 5  the sentence so imposed shall be considered an indeterminate

 6  sentence. The court shall not fix a maximum sentence that is less

 7  than the maximum term for a first conviction.

 8        (3) A conviction shall not be used to enhance a sentence

 9  under this section if that conviction is used to enhance a

10  sentence under a statute that prohibits use of the conviction for

11  further enhancement under this section.

12        Sec. 11. (1) If a person has been convicted of any

13  combination of 2 or more felonies or attempts to commit felonies,

14  whether the convictions occurred in this state or would have been

15  for felonies or attempts to commit felonies in this state if

16  obtained in this state, and that person commits a subsequent

17  felony within this state, the person shall be punished upon

18  conviction of the subsequent felony and sentencing under section

19  13 of this chapter as follows:

20        (a) If the subsequent felony is punishable upon a first

21  conviction by imprisonment for a term less than life, the court,

22  except as otherwise provided in this section or section 1 of

23  chapter XI, may sentence the person to imprisonment for a maximum

24  term that is not more than twice the longest term prescribed by

25  law for a first conviction of that offense or for a lesser term.

26        (b) If the subsequent felony is punishable upon a first

27  conviction by imprisonment for life, the court, except as

 1  otherwise provided in this section or section 1 of chapter XI,

 2  may sentence the person to imprisonment for life or for a lesser

 3  term.

 4        (c) If the subsequent felony is a major controlled substance

 5  offense, the person shall be punished as provided by part 74 of

 6  the public health code, 1978 PA 368, MCL 333.7401 to 333.7461.

 7        (2) If the court pursuant to this section imposes a sentence

 8  of imprisonment for any term of years, the court shall fix the

 9  length of both the minimum and maximum sentence within any

10  specified limits in terms of years or a fraction of a year, and

11  the sentence so imposed shall be considered an indeterminate

12  sentence. The court shall not fix a maximum sentence that is less

13  than the maximum term for a first conviction.

14        (3) A conviction shall not be used to enhance a sentence

15  under this section if that conviction is used to enhance a

16  sentence under a statute that prohibits use of the conviction for

17  further enhancement under this section.

18        Sec. 12. (1) If a person has been convicted of any

19  combination of 3 or more felonies or attempts to commit felonies,

20  whether the convictions occurred in this state or would have been

21  for felonies or attempts to commit felonies in this state if

22  obtained in this state, and that person commits a subsequent

23  felony within this state, the person shall be punished upon

24  conviction of the subsequent felony and sentencing under section

25  13 of this chapter as follows:

26        (a) If the subsequent felony is punishable upon a first

27  conviction by imprisonment for a maximum term of 5 years or more

 1  or for life, the court, except as otherwise provided in this

 2  section or section 1 of chapter XI, may sentence the person to

 3  imprisonment for life or for a lesser term.

 4        (b) If the subsequent felony is punishable upon a first

 5  conviction by imprisonment for a maximum term that is less than 5

 6  years, the court, except as otherwise provided in this section or

 7  section 1 of chapter XI, may sentence the person to imprisonment

 8  for a maximum term of not more than 15 years.

 9        (c) If the subsequent felony is a major controlled substance

10  offense, the person shall be punished as provided by part 74 of

11  the public health code, 1978 PA 368, MCL 333.7401 to 333.7461.

12        (2) If the court pursuant to this section imposes a sentence

13  of imprisonment for any term of years, the court shall fix the

14  length of both the minimum and maximum sentence within any

15  specified limits in terms of years or a fraction of a year, and

16  the sentence so imposed shall be considered an indeterminate

17  sentence. The court shall not fix a maximum sentence that is less

18  than the maximum term for a first conviction.

19        (3) A conviction shall not be used to enhance a sentence

20  under this section if that conviction is used to enhance a

21  sentence under a statute that prohibits use of the conviction for

22  further enhancement under this section.

23        (4) An offender sentenced under this section or section 10

24  or 11 of this chapter for an offense other than a major

25  controlled substance offense is not eligible for parole until

26  expiration of the following:

27        (a) For a prisoner other than a prisoner subject to

 1  disciplinary time, the minimum term fixed by the sentencing judge

 2  at the time of sentence unless the sentencing judge or a

 3  successor gives written approval for parole at an earlier date

 4  authorized by law.

 5        (b) For a prisoner subject to disciplinary time, the minimum

 6  term fixed by the sentencing judge.

 7        (5) This section and sections 10 and 11 of this chapter are

 8  not in derogation of other provisions of law that permit or

 9  direct the imposition of a consecutive sentence for a subsequent

10  felony.

11        (6) As used in this section, "prisoner subject to

12  disciplinary time" means that term as defined in section 34 of

13  1893 PA 118, MCL 800.34.

14        Sec. 13. (1) In a criminal action, the prosecuting attorney

15  may seek to enhance the sentence of the defendant as provided

16  under section 10, 11, or 12 of this chapter, by filing a written

17  notice of his or her intent to do so within 21 days after the

18  defendant's arraignment on the information charging the

19  underlying offense or, if arraignment is waived, within 21 days

20  after the filing of the information charging the underlying

21  offense.

22        (2) A notice of intent to seek an enhanced sentence filed

23  under subsection (1) shall list the prior conviction or

24  convictions that will or may be relied upon for purposes of

25  sentence enhancement. The notice shall be filed with the court

26  and served upon the defendant or his or her attorney within the

27  time provided in subsection (1). The notice may be personally

 1  served upon the defendant or his or her attorney at the

 2  arraignment on the information charging the underlying offense,

 3  or may be served in the manner provided by law or court rule for

 4  service of written pleadings. The prosecuting attorney shall file

 5  a written proof of service with the clerk of the court.

 6        (3) The prosecuting attorney may file notice of intent to

 7  seek an enhanced sentence after the defendant has been convicted

 8  of the underlying offense or a lesser offense, upon his or her

 9  plea of guilty or nolo contendere if the defendant pleads guilty

10  or nolo contendere at the arraignment on the information charging

11  the underlying offense, or within the time allowed for filing of

12  the notice under subsection (1).

13        (4) A defendant who has been given notice that the

14  prosecuting attorney will seek to enhance his or her sentence as

15  provided under section 10, 11, or 12 of this chapter, may

16  challenge the accuracy or constitutional validity of 1 or more of

17  the prior convictions listed in the notice by filing a written

18  motion with the court and by serving a copy of the motion upon

19  the prosecuting attorney in accordance with rules of the supreme

20  court.

21        (5) The existence of the defendant's prior conviction or

22  convictions shall be determined by the court, without a jury, at

23  sentencing, or at a separate hearing scheduled for that purpose

24  before sentencing. The existence of a prior conviction may be

25  established by any evidence that is relevant for that purpose,

26  including, but not limited to, 1 or more of the following:

27        (a) A copy of a judgment of conviction.

 1        (b) A transcript of a prior trial or a plea-taking or

 2  sentencing proceeding.

 3        (c) A copy of a court register of actions.

 4  (d)  (c) Information contained in a presentence report.

 5  (e)  (d) A statement of the defendant.

 6        (6) The court shall resolve any challenges to the accuracy

 7  or constitutional validity of a prior conviction or convictions

 8  that have been raised in a motion filed under subsection (4) at

 9  sentencing or at a separate hearing scheduled for that purpose

10  before sentencing. The defendant, or his or her attorney, shall

11  be given an opportunity to deny, explain, or refute any evidence

12  or information pertaining to the defendant's prior conviction or

13  convictions before sentence is imposed, and shall be permitted to

14  present relevant evidence for that purpose. The defendant shall

15  bear the burden of establishing a prima facie showing that an

16  alleged prior conviction is inaccurate or constitutionally

17  invalid. If the defendant establishes a prima facie showing that

18  information or evidence concerning an alleged prior conviction is

19  inaccurate, the prosecuting attorney shall bear the burden of

20  proving, by a preponderance of the evidence, that the information

21  or evidence is accurate. If the defendant establishes a prima

22  facie showing that an alleged prior conviction is

23  constitutionally invalid, the prosecuting attorney shall bear the

24  burden of proving, by a preponderance of the evidence, that the

25  prior conviction is constitutionally valid.

26                            CHAPTER XI

27        Sec. 3. (1) The sentence of probation shall include all of

 1  the following conditions:

 2        (a) During the term of his or her probation, the probationer

 3  shall not violate any criminal law of this state, the United

 4  States, or another state or any ordinance of any municipality in

 5  this state or another state.

 6        (b) During the term of his or her probation, the probationer

 7  shall not leave the state without the consent of the court

 8  granting his or her application for probation.

 9        (c) The probationer shall report to the probation officer,

10  either in person or in writing, monthly or as often as the

11  probation officer requires. This subdivision does not apply to a

12  juvenile placed on probation and committed under section 1(3) or

13  (4) of chapter IX to an institution or agency described in the

14  youth rehabilitation services act, 1974 PA 150, MCL 803.301 to

15  803.309.

16        (d) If sentenced in circuit court, the probationer shall pay

17  a probation supervision fee as prescribed in section 3c of this

18  chapter.

19        (e) The probationer shall pay restitution to the victim of

20  the defendant's course of conduct giving rise to the conviction

21  or to the victim's estate as provided in chapter IX. An order for

22  payment of restitution may be modified and shall be enforced as

23  provided in chapter IX.

24        (f) The probationer shall pay an assessment ordered under

25  section 5 of 1989 PA 196, MCL 780.905.

26        (g) The probationer shall pay the minimum state cost

27  prescribed by section 1j of chapter IX.

 1        (h) If the probationer is required to be registered under

 2  the sex offenders registration act, 1994 PA 295, MCL 28.721 to

 3  28.732  28.736, the probationer shall comply with that act.

 4        (2) As a condition of probation, the court may require the

 5  probationer to do 1 or more of the following:

 6        (a) Be imprisoned in the county jail for not more than 12

 7  months, at the time or intervals, which may be consecutive or

 8  nonconsecutive, within the probation as the court determines.

 9  However, the period of confinement shall not exceed the maximum

10  period of imprisonment provided for the offense charged if the

11  maximum period is less than 12 months. The court may permit day

12  parole as authorized under 1962 PA 60, MCL 801.251 to 801.258.

13  The court may permit a work or school release from jail. This

14  subdivision does not apply to a juvenile placed on probation and

15  committed under section 1(3) or (4) of chapter IX to an

16  institution or agency described in the youth rehabilitation

17  services act, 1974 PA 150, MCL 803.301 to 803.309.

18        (b) Pay immediately or within the period of his or her

19  probation a fine imposed when placed on probation.

20        (c) Pay costs pursuant to subsection (5).

21        (d) Pay any assessment ordered by the court other than an

22  assessment described in subsection (1)(f).

23        (e) Engage in community service.

24        (f) Agree to pay by wage assignment any restitution,

25  assessment, fine, or cost imposed by the court.

26        (g) Participate in inpatient or outpatient drug treatment

27  or, beginning January 1, 2005, participate in a drug treatment

 1  court under chapter 10A of the revised judicature act of 1961,

 2  1961 PA 236, MCL 600.1060 to 600.1082.

 3        (h) Participate in mental health treatment.

 4        (i) Participate in mental health or substance abuse

 5  counseling.

 6        (j) Participate in a community corrections program.

 7        (k) Be under house arrest.

 8        (l) Be subject to electronic monitoring.

 9        (m) Participate in a residential probation program.

10        (n) Satisfactorily complete a program of incarceration in a

11  special alternative incarceration unit as provided in section 3b

12  of this chapter.

13        (o) Be subject to conditions reasonably necessary for the

14  protection of 1 or more named persons.

15        (p) Reimburse the county for expenses incurred by the county

16  in connection with the conviction for which probation was ordered

17  as provided in the prisoner reimbursement to the county act, 1984

18  PA 118, MCL 801.81 to 801.93.

19        (q) Complete his or her high school education or obtain the

20  equivalency of a high school education in the form of a general

21  education development (GED) certificate.

22        (3) The court may impose other lawful conditions of

23  probation as the circumstances of the case require or warrant or

24  as in its judgment are proper.

25        (4) If an order or amended order of probation contains a

26  condition for the protection of 1 or more named persons as

27  provided in subsection (2)(o), the court or a law enforcement

 1  agency within the court's jurisdiction shall enter the order or

 2  amended order into the law enforcement information network. If

 3  the court rescinds the order or amended order or the condition,

 4  the court shall remove the order or amended order or the

 5  condition from the law enforcement information network or notify

 6  that law enforcement agency and the law enforcement agency shall

 7  remove the order or amended order or the condition from the law

 8  enforcement information network.

 9        (5) If the court requires the probationer to pay costs under

10  subsection (2), the costs shall be limited to expenses

11  specifically incurred in prosecuting the defendant or providing

12  legal assistance to the defendant and supervision of the

13  probationer.

14        (6) If the court imposes costs under subsection (2) as part

15  of a sentence of probation, all of the following apply:

16        (a) The court shall not require a probationer to pay costs

17  under subsection (2) unless the probationer is or will be able to

18  pay them during the term of probation. In determining the amount

19  and method of payment of costs under subsection (2), the court

20  shall take into account the probationer's financial resources and

21  the nature of the burden that payment of costs will impose, with

22  due regard to his or her other obligations.

23        (b) A probationer who is required to pay costs under

24  subsection (1)(g) or (2)(c) and who is not in willful default of

25  the payment of the costs may petition the sentencing judge or his

26  or her successor at any time for a remission of the payment of

27  any unpaid portion of those costs. If the court determines that

 1  payment of the amount due will impose a manifest hardship on the

 2  probationer or his or her immediate family, the court may remit

 3  all or part of the amount due in costs or modify the method of

 4  payment.

 5        (7) If a probationer is required to pay costs as part of a

 6  sentence of probation, the court may require payment to be made

 7  immediately or the court may provide for payment to be made

 8  within a specified period of time or in specified installments.

 9        (8) If a probationer is ordered to pay costs as part of a

10  sentence of probation, compliance with that order shall be a

11  condition of probation. The court may revoke probation if the

12  probationer fails to comply with the order and if the probationer

13  has not made a good faith effort to comply with the order. In

14  determining whether to revoke probation, the court shall consider

15  the probationer's employment status, earning ability, and

16  financial resources, the willfulness of the probationer's failure

17  to pay, and any other special circumstances that may have a

18  bearing on the probationer's ability to pay. The proceedings

19  provided for in this subsection are in addition to those provided

20  in section 4 of this chapter.

21        (9) If  sentencing  entry of judgment is deferred in the

22  circuit court, the court shall require the individual to pay a

23  supervision fee in the same manner as is prescribed for a delayed

24  sentence under section 1(3) of this chapter, shall require the

25  individual to pay the minimum state costs prescribed by section

26  1j of chapter IX, and may impose, as applicable, the conditions

27  of probation described in subsections (1), (2), and (3).

 1        (10) If sentencing is delayed or entry of judgment is

 2  deferred in the district court or in a municipal court, the court

 3  shall require the individual to pay the minimum state costs

 4  prescribed by section 1j of chapter IX and may impose, as

 5  applicable, the conditions of probation described in subsections

 6  (1), (2), and (3).

 7                           CHAPTER XVII

 8        Sec. 13j. This chapter applies to the following felonies

 9  enumerated in chapters 325 to 332 of the Michigan Compiled Laws:

10 M.C.L. Category Class Description Stat Max

11 328.232            Property  E      Conversion of funeral contracts       5

12 330.1944           Pub saf   F      Criminal sexual psychopath leaving state without permission    4

13        Sec. 16y. This chapter applies to the following felonies

14  enumerated in chapter 750 of the Michigan Compiled Laws:

15 M.C.L. Category Class Description Stat Max

16 750.520b(2)(a) 750.520b(2)   Person A                    First degree criminal sexual conduct        Life

17 750.520c           Person    C      Second degree criminal sexual conduct 15

18 750.520d           Person    B      Third degree criminal sexual conduct  15

1  750.520e           Person    G      Fourth degree criminal sexual conduct 2

2  750.520g(1)        Person    D      Assault with intent to commit sexual penetration           10

3  750.520g(2)        Person    E      Assault with intent to commit sexual contact   5

4  750.520n           Pub saf   G      Electronic monitoring device violation   2

5  750.528            Pub saf   F      Destroying dwelling house or other property during riot or unlawful assembly       4

6  750.528a           Pub saf   F      Civil disorders —firearms/explosives  4

7  750.529            Person    A      Armed robbery        Life

8  750.529a           Person    A      Carjacking           Life

9  750.530            Person    C      Unarmed robbery      15

10 750.531            Person    C      Bank robbery/safebreaking   Life

11 750.532            Person    H      Seduction            5

12 750.552c           Pub saf   F      Trespass upon key facility  4

13        Sec. 16z. This chapter applies to the following felonies

14  enumerated in chapter 750 of the Michigan Compiled Laws:

1  M.C.L. Category Class Description Stat Max

2  750.520b(2)(a) 750.520b(2)     Property                     D   Receiving or concealing stolen property having a value of $20,000 or more or with prior convictions             10

3  750.535(3)           Property  E       Receiving or concealing stolen property having a value of $1,000 to $20,000 or with prior convictions 5

4  750.535(7)           Property  E       Receiving or concealing stolen motor vehicle                 5

5  750.535a(2)          Pub ord   D       Operating a chop shop 10

6  750.535a(3)          Pub ord   D       Operating a chop shop, subsequent violation               10

7  750.535b             Pub saf   E       Stolen firearms or ammunition      10

8  750.539c             Pub ord   H       Eavesdropping        2

9  750.539d(3)(a)(i)     Pub ord   H       Installing, placing, or using eavesdropping device    2

10 750.539d(3)(a)(ii)    Pub ord   E       Installing, placing, or using eavesdropping device — subsequent offense                     5

11 750.539d(3)(b)       Pub ord   E       Distributing, disseminating, or transmitting recording or image obtained by eavesdropping     5

1  750.539e             Pub ord   H       Divulging or using information obtained by eavesdropping           2

2  750.539f             Pub ord   H       Manufacture or possession of eavesdropping device                  2

3  750.539j(2)(a)(i)     Pub ord   H       Lewd surveillance or capturing lewd image   2

4  750.539j(2)(a)(ii)    Pub ord   E       Lewd surveillance or capturing lewd image — subsequent offense    5

5  750.539j(2)(b)       Pub ord   E       Distributing, disseminating, or transmitting visual image obtained by surveillance            5

6  750.540(5)(a)        Pub ord   H       Damaging, destroying, using, or obstructing use of electronic medium of communication         2

7  750.540(5)(b)        Person    F       Damaging, destroying, using, or obstructing use of electronic medium of communication resulting in injury or death   4

8  750.540c(4)          Property  F       Telecommunication violation        4

9  750.540f(2)          Property  E       Knowingly publishing a communications access device with prior convictions     5

10 750.540g(1)(c)       Property  E       Diverting telecommunication services having a value of $1,000 to $20,000 or with prior convictions 5

1  750.540g(1)(d)       Property  D       Diverting telecommunications services having a value of $20,000 or more or with prior convictions   10

2  750.543f             Person    A       Terrorism without causing death    Life

3  750.543h(3)(a)       Pub ord   B       Hindering prosecution of terrorism — certain terrorist acts  20

4  750.543h(3)(b)       Pub ord   A       Hindering prosecution of terrorism — act of terrorism            Life

5  750.543k             Pub saf   B       Soliciting or providing material support for terrorism or terrorist acts   20

6  750.543m             Pub ord   B       Threat or false report of terrorism 20

7  750.543p             Pub saf   B       Use of internet or telecommunications to commit certain terrorist acts     20

8  750.543r             Pub saf   B       Possession of vulnerable target information with intent to commit certain terrorist acts      20

9  750.545              Pub ord   E       Misprision of treason 5

10 750.552b             Property  F       Trespassing on correctional facility property                4

1  750.552c             Pub saf   F       Trespass upon key facility         4

 2        Sec. 21. (1)  For  Except as otherwise provided in this

 3  section, for an offense enumerated in part 2 of this chapter,

 4  determine the recommended minimum sentence range as follows:

 5        (a) Find the offense category for the offense from part 2 of

 6  this chapter. From section 22 of this chapter, determine the

 7  offense variables to be scored for that offense category and

 8  score only those offense variables for the offender as provided

 9  in part 4 of this chapter. Total those points to determine the

10  offender's offense variable level.

11        (b) Score all prior record variables for the offender as

12  provided in part 5 of this chapter. Total those points to

13  determine the offender's prior record variable level.

14        (c) Find the offense class for the offense from part 2 of

15  this chapter. Using the sentencing grid for that offense class in

16  part 6 of this chapter, determine the recommended minimum

17  sentence range from the intersection of the offender's offense

18  variable level and prior record variable level. The recommended

19  minimum sentence within a sentencing grid is shown as a range of

20  months or life.

21        (2) If the defendant was convicted of multiple offenses,

22  subject to section 14 of chapter  IX  XI, score each offense as

23  provided in this part.

24        (3) If the offender is being sentenced under section 10, 11,

25  or 12 of chapter IX, determine the offense category, offense

 1  class, offense variable level, and prior record variable level

 2  based on the underlying offense. To determine the recommended

 3  minimum sentence range, increase the upper limit of the

 4  recommended minimum sentence range determined under part 6 for

 5  the underlying offense as follows:

 6        (a) If the offender is being sentenced for a second felony,

 7  25%.

 8        (b) If the offender is being sentenced for a third felony,

 9  50%.

10        (c) If the offender is being sentenced for a fourth or

11  subsequent felony, 100%.

12        (4) If the offender is being sentenced for a violation

13  described in section 18 of this chapter,  determine the offense

14  class, offense variable level, and prior record variable level

15  based on the underlying offense.  both of the following apply:

16        (a) Determine the offense variable level by scoring the

17  offense variables for the underlying offense and any additional

18  offense variables for the offense category indicated in section

19  18 of this chapter.

20        (b) Determine the offense class based on the underlying

21  offense. If there are multiple underlying felony offenses, the

22  offense class is the same as that of the underlying felony

23  offense with the highest crime class. If there are multiple

24  underlying offenses but only 1 is a felony, the offense class is

25  the same as that of the underlying felony offense. If no

26  underlying offense is a felony, the offense class is G.

27        (5) If the offender is being sentenced for an attempted

 1  felony described in section 19 of this chapter, determine the

 2  offense variable level and prior record variable level based on

 3  the underlying attempted offense.

 4        Sec. 51. (1) Prior record variable 1 is prior high severity

 5  felony convictions. Score prior record variable 1 by determining

 6  which of the following apply and by assigning the number of

 7  points attributable to the one that has the highest number of

 8  points:

9  (a) The offender has 3 or more prior high

10 severity felony convictions.....................  75 points

11 (b) The offender has 2 prior high severity

12 felony convictions..............................  50 points

13 (c) The offender has 1 prior high severity

14 felony conviction...............................  25 points

15      (d) The offender has no prior high severity

16 felony convictions..............................   0 points

17        (2) As used in this section, "prior high severity felony

18  conviction" means a conviction for  a  any of the following, if

19  the conviction was entered before the sentencing offense was

20  committed:

21        (a) A crime listed in offense class M2, A, B, C, or D.  or

22  for a

23        (b) A felony under a law of the United States or another

24  state corresponding to a crime listed in offense class M2, A, B,

25  C, or D.  , if the conviction was entered before the sentencing

26  offense was committed.

27        (c) A felony that is not listed in offense class M2, A, B,

 1  C, D, E, F, G, or H and that is punishable by a maximum term of

 2  imprisonment of 10 years or more.

 3        (d) A felony under a law of the United States or another

 4  state that does not correspond to a crime listed in offense class

 5  M2, A, B, C, D, E, F, G, or H and that is punishable by a maximum

 6  term of imprisonment of 10 years or more.

 7        Sec. 52. (1) Prior record variable 2 is prior low severity

 8  felony convictions. Score prior record variable 2 by determining

 9  which of the following apply and by assigning the number of

10  points attributable to the one that has the highest number of

11  points:

12 (a) The offender has 4 or more prior low

13 severity felony convictions.....................  30 points

14 (b) The offender has 3 prior low severity

15 felony convictions..............................  20 points

16 (c) The offender has 2 prior low severity

17 felony convictions..............................  10 points

18      (d) The offender has 1 prior low severity

19 felony conviction...............................   5 points

20      (d) The offender has no prior low severity

21 felony convictions..............................   0 points

22        (2) As used in this section, "prior low severity felony

23  conviction" means a conviction for  a  any of the following, if

24  the conviction was entered before the sentencing offense was

25  committed:

26        (a) A crime listed in offense class E, F, G, or H.  or for a

27        (b) A felony under a law of the United States or another

 1  state that corresponds to a crime listed in offense class E, F,

 2  G, or H.  , if the conviction was entered before the sentencing

 3  offense was committed.

 4        (c) A felony that is not listed in offense class M2, A, B,

 5  C, D, E, F, G, or H and that is punishable by a maximum term of

 6  imprisonment of less than 10 years.

 7        (d) A felony under a law of the United States or another

 8  state that does not correspond to a crime listed in offense class

 9  M2, A, B, C, D, E, F, G, or H and that is punishable by a maximum

10  term of imprisonment of less than 10 years.

11        Sec. 53. (1) Prior record variable 3 is prior high severity

12  juvenile adjudications. Score prior record variable 3 by

13  determining which of the following apply and by assigning the

14  number of points attributable to the one that has the highest

15  number of points:

16 (a) The offender has 3 or more prior high

17 severity juvenile adjudications.................  50 points

18 (b) The offender has 2 prior high severity

19 juvenile adjudications..........................  25 points

20 (c) The offender has 1 prior high severity

21 juvenile adjudication...........................  10 points

22      (d) The offender has no prior high severity

23 juvenile adjudications..........................   0 points

24        (2) As used in this section, "prior high severity juvenile

25  adjudication" means a juvenile adjudication for conduct that

26  would be  a  any of the following if committed by an adult, if

 1  the order of disposition was entered before the sentencing

 2  offense was committed:

 3        (a) A crime listed in offense class M2, A, B, C, or D.  if

 4  committed by an adult or for conduct that would be a

 5        (b) A felony under a law of the United States or another

 6  state corresponding to a crime listed in offense class M2, A, B,

 7  C, or D. if committed by an adult, if the order of disposition

 8  was entered before the sentencing offense was committed.

 9        (c) A felony that is not listed in offense class M2, A, B,

10  C, D, E, F, G, or H and that is punishable by a maximum term of

11  imprisonment of 10 years or more.

12        (d) A felony under a law of the United States or another

13  state that does not correspond to a crime listed in offense class

14  M2, A, B, C, D, E, F, G, or H and that is punishable by a maximum

15  term of imprisonment of 10 years or more.

16        Sec. 54. (1) Prior record variable 4 is prior low severity

17  juvenile adjudications. Score prior record variable 4 by

18  determining which of the following apply and by assigning the

19  number of points attributable to the one that has the highest

20  number of points:

21 (a) The offender has 6 or more prior low

22 severity juvenile adjudications.................  20 points

23 (b) The offender has 5 prior low severity

24 juvenile adjudications..........................  15 points

25 (c) The offender has 3 or 4 prior low

26 severity juvenile adjudications.................  10 points

27      (d) The offender has 2 prior low severity

1  juvenile adjudications...........................  5 points

2       (e) The offender has 1 prior low severity

3  juvenile adjudication...........................   2 points

4       (f) The offender has no prior low severity

5  juvenile adjudications..........................   0 points

 6        (2) As used in this section, "prior low severity juvenile

 7  adjudication" means a juvenile adjudication for conduct that

 8  would be  a  any of the following if committed by an adult, if

 9  the order of disposition was entered before the sentencing

10  offense was committed:

11        (a) A crime listed in offense class E, F, G, or H.  if

12  committed by an adult or for conduct that would be a

13        (b) A felony under a law of the United States or another

14  state corresponding to a crime listed in offense class E, F, G,

15  or H.  if committed by an adult, if the order of disposition was

16  entered before the sentencing offense was committed.

17        (c) A felony that is not listed in offense class M2, A, B,

18  C, D, E, F, G, or H and that is punishable by a maximum term of

19  imprisonment of less than 10 years.

20        (d) A felony under a law of the United States or another

21  state that does not correspond to a crime listed in offense class

22  M2, A, B, C, D, E, F, G, or H and that is punishable by a maximum

23  term of imprisonment of less than 10 years.

24        Enacting section 1. Section 3a of chapter X of the code of

25  criminal procedure, 1927 PA 175, MCL 770.3a, is repealed.