SB-0454, As Passed House, December 14, 2006

 

 

 

 

 

 

 

 

 

 

 

 

 

SUBSTITUTE FOR

 

SENATE BILL NO. 454

 

 

 

 

 

 

 

 

 

 

 

 

 

     A bill to amend 1931 PA 328, entitled

 

"The Michigan penal code,"

 

by amending section 174 (MCL 750.174), as amended by 1998 PA 312.

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

     Sec. 174. (1) A person who as the agent, servant, or employee

 

of another person, governmental entity within this state, or other

 

legal entity or who as the trustee, bailee, or custodian of the

 

property of another person, governmental entity within this state,

 

or other legal entity fraudulently disposes of or converts to his

 

or her own use, or takes or secretes with the intent to convert to

 

his or her own use without the consent of his or her principal, any

 

money or other personal property of his or her principal that has

 


Senate Bill No. 454 as amended September 12, 2006

 

come to that person's possession or that is under his or her charge

 

or control by virtue of his or her being an agent, servant,

 

employee, trustee, bailee, or custodian, is guilty of embezzlement.

 

     (2) If the money or personal property embezzled has a value of

 

less than $200.00, the person is guilty of a misdemeanor punishable

 

by imprisonment for not more than 93 days or a fine of not more

 

than $500.00 or 3 times the value of the money or property

 

embezzled, whichever is greater, or both imprisonment and a fine.

 

     (3) If any of the following apply, the person is guilty of a

 

misdemeanor punishable by imprisonment for not more than 1 year or

 

a fine of not more than $2,000.00 or 3 times the value of the money

 

or property embezzled, whichever is greater, or both imprisonment

 

and a fine:

 

     (a) The money or personal property embezzled has a value of

 

$200.00 or more but less than $1,000.00.

 

     (b) The person violates subsection (2) and has 1 or more prior

 

convictions for committing or attempting to commit an offense under

 

this section or a local ordinance substantially corresponding to

 

this section.

 

     (c) The person violates subsection (2) and the victim is a

 

nonprofit corporation <<or charitable organization under federal law or

 

the laws of this state.        >>

 

     (4) If any of the following apply, the person is guilty of a

 

felony punishable by imprisonment for not more than 5 years or a

 

fine of not more than $10,000.00 or 3 times the value of the money

 

or property embezzled, whichever is greater, or both imprisonment

 

and a fine:

 


Senate Bill No. 454 as amended September 12, 2006

 

     (a) The money or personal property embezzled has a value of

 

$1,000.00 or more but less than $20,000.00.

 

     (b) The person violates subsection (3)(a) or (c) and has 1 or

 

more prior convictions for committing or attempting to commit an

 

offense under this section. For purposes of this subdivision,

 

however, a prior conviction does not include a conviction for a

 

violation or attempted violation of subsection (2) or (3)(b).

 

     (c) The person violates subsection (3)(a) and the victim is a

 

nonprofit corporation <<or charitable organization under federal law or

 

the laws of this state.     >>

 

     (5) If any of the following apply, the person is guilty of a

 

felony punishable by imprisonment for not more than 10 years or a

 

fine of not more than $15,000.00 or 3 times the value of the money

 

or property embezzled, whichever is greater, or both imprisonment

 

and a fine:

 

     (a) The money or personal property embezzled has a value of

 

$20,000.00 or more but less than $50,000.00.

 

     (b) The person violates subsection (4)(a) or (c) and has 2 or

 

more prior convictions for committing or attempting to commit an

 

offense under this section. For purposes of this subdivision,

 

however, a prior conviction does not include a conviction for a

 

violation or attempted violation of subsection (2) or (3)(b).

 

     (c) The person violates subsection (4)(a) and the victim is a

 

nonprofit corporation <<or charitable organization under federal law or

 

the laws of this state.             >>

 

     (6) If the money or personal property embezzled has a value of

 

$50,000.00 or more but less than $100,000.00, the person is guilty

 


of a felony punishable by imprisonment for not more than 15 years

 

or a fine of not more than $25,000.00 or 3 times the value of the

 

money or property embezzled, whichever is greater, or both

 

imprisonment and a fine.

 

     (7) If the money or personal property embezzled has a value of

 

$100,000.00 or more, the person is guilty of a felony punishable by

 

imprisonment for not more than 20 years or a fine of not more than

 

$50,000.00 or 3 times the value of the money or property embezzled,

 

whichever is greater, or both imprisonment and a fine.

 

     (8)  (6)  Except as otherwise provided in this subsection, the

 

values of money or personal property embezzled in separate

 

incidents pursuant to a scheme or course of conduct within any 12-

 

month period may be aggregated to determine the total value of

 

money or personal property embezzled. If the scheme or course of

 

conduct is directed against only 1 person, governmental entity

 

within this state, or other legal entity, no time limit applies to

 

aggregation under this subsection.

 

     (9)  (7)  If the prosecuting attorney intends to seek an

 

enhanced sentence based upon the defendant having 1 or more prior

 

convictions, the prosecuting attorney shall include on the

 

complaint and information a statement listing the prior conviction

 

or convictions. The existence of the defendant's prior conviction

 

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

 

sentencing or at a separate hearing for that purpose before

 

sentencing. The existence of a prior conviction may be established

 

by any evidence relevant for that purpose, including, but not

 

limited to, 1 or more of the following:

 


Senate Bill No. 454 as amended September 12, 2006

 

     (a) A copy of the judgment of conviction.

 

     (b) A transcript of a prior trial, plea-taking, or sentencing.

 

     (c) Information contained in a presentence report.

 

     (d) The defendant's statement.

 

     (10)  (8)  In a prosecution under this section, the failure,

 

neglect, or refusal of the agent, servant, employee, trustee,

 

bailee, or custodian to pay, deliver, or refund to his or her

 

principal the money or property entrusted to his or her care upon

 

demand is prima facie proof of intent to embezzle.

 

     (11)  (9)  If the sentence for a conviction under this section

 

is enhanced by 1 or more prior convictions, those prior convictions

 

shall not be used to further enhance the sentence for the

 

conviction  pursuant to  under section 10, 11, or 12 of chapter IX

 

of the code of criminal procedure, 1927 PA 175, MCL 769.10, 769.11,

 

and 769.12.

 

     (12) The court may order a term of imprisonment imposed for a

 

felony violation of this section to be served consecutively to any

 

term of imprisonment imposed for any other criminal offense if the

 

victim of the violation of this section was any of the following:

 

     (a) A nonprofit corporation <<or charitable organization under

 

federal law or the laws of this state.  >>

 

     (b) A person 60 years of age or older.

 

     (c) A vulnerable adult as defined in section 174a.