July 27, 2011, Introduced by Reps. Wayne Schmidt, Roy Schmidt, Clemente, Haugh, Foster and Lori and referred to the Committee on Judiciary.
A bill to amend 1931 PA 328, entitled
"The Michigan penal code,"
(MCL 750.1 to 750.568) by adding section 296.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 296. (1) A person shall not knowingly do any of the
following with the intent to avoid payment for any service:
(a) Secure performance of the service by deception, threat, or
false token.
(b) Having control over the disposition of services of another
to which he or she is not entitled, divert the other's services to
his or her own benefit or to the benefit of another person not
entitled.
(c) Having control of personal property under a written rental
agreement, hold the property beyond the expiration of the rental
period without the effective consent of the owner of the property,
thereby depriving the owner of the property of its use in further
rentals.
(d) Secure the performance of the service by agreeing to
provide compensation and, after the service is rendered, fail to
make payment after receiving notice demanding payment.
(2) It is a rebuttable presumption under this section that the
person intended to avoid payment if any of the following apply:
(a) The person absconded without paying for the service or
expressly refused to pay for the service in circumstances where
payment is ordinarily made immediately upon the rendering of the
service.
(b) The person failed to make payment under a service
agreement within 10 days after receiving a notice demanding
payment.
(c) The person returned property held under a rental agreement
after the expiration of the rental agreement and failed to pay the
applicable rental charge for the property within 10 days after the
date on which the person received a notice demanding payment.
(d) The person failed to return the property held under a
rental agreement as follows:
(i) Within 5 days after receiving a notice demanding return, if
the property is valued at less than $1,500.00.
(ii) Within 3 days after receiving a notice demanding return,
if the property is valued at $1,500.00 or more.
(3) For purposes of subsections (1)(d) and (2)(b) and (d),
notice shall be provided in writing, sent by registered or
certified mail with return receipt requested or by telegram with
report of delivery requested, and addressed to the person at his or
her address shown on the rental agreement or service agreement.
(4) If written notice is given in accordance with subsection
(3), it is a rebuttable presumption that the notice was received
not later than 5 days after it was sent.
(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
property involved, whichever is greater, or both imprisonment and a
fine:
(a) The property has a value of $20,000.00 or more.
(b) The person violates subsection (6)(a) 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 (7)(b) or (8).
(6) 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
property, whichever is greater, or both imprisonment and a fine:
(a) The property involved has a value of $1,000.00 or more but
less than $20,000.00.
(b) The person violates subsection (7)(a) 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 (7)(b) or (8).
(7) 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
property involved, whichever is greater, or both imprisonment and a
fine:
(a) The property involved has a value of $200.00 or more but
less than $1,000.00.
(b) The person violates subsection (8) 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.
(8) If the property involved 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 property involved, whichever is greater, or
both imprisonment and a fine.
(9) The values of property involved 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 property
involved.
(10) 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:
(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.
(11) 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 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.