On January 4, 2021, Governor Whitmer signed Public Act 397 of 2020 into law that made several modifications to Michigan’s criminal procedure rules related to probationary sentences. Since 1913, probation has been the primary form of supervision for anyone convicted of a felony in Michigan. In addition, probation is utilized as punishment for the vast majority of misdemeanors not resolved by fines and costs only. However, probation sentences have become increasingly longer and burdensome as the legislature and judges try to be tougher on crime. This leads to more opportunities for probationers to violate and become incarcerated for long periods of time due to technicalities such as a late report, only to be released and reinstated on probation for an even longer period of time.
Effective April 1, 2021, “[a]fter the defendant has completed 1/2 of the original felony or misdemeanor probation period, he or she may be eligible for early discharge.” MCL 771.2(2). “The defendant must be notified at sentencing of his or her eligibility and the requirements for early discharge from probation.” Id. “If a probationer has completed all required programming, the probation department may notify the sentencing court that the probationer may be eligible for early discharge from probation.” MCL 771.2(3). If the probation department does not notify the sentencing court as required under this subsection and the probationer has not violated probation in the immediately preceding 3 months, the probationer may notify the court that he or she may be eligible for early discharge from probation…”. Id. Either the probationer or the probation officer can file out and file MC 512 (Notice Regarding Eligibility For Early Discharge From Probation) with the sentencing court once eligible. However, a defendant who was convicted of 1 or more of the following crimes is NOT eligible for reduced probation:
- Domestic violence (MCL 750.81), aggravated domestic violence (MCL 750.81a), or an offense that “involves” domestic violence. MCL 771.2(10)(a).
- Assault with intent to do great bodily harm less than murder or assault by strangulation (MCL 750.84). MCL 771.2(10)(b).
- Stalking (MCL 750.411h). MCL 771.2(10)(c).
- Aggravated stalking (MCL 750.411i). MCL 771.2(10)(d).
- Criminal Sexual Conduct – Second Degree (MCL 750.520c). MCL 771.2(10)(e).
- Criminal Sexual Conduct – Fourth Degree (MCL 750.520e). MCL 771.2(10)(f).
- Any “listed offense” eligible as a Tier I, Tier II or Tier III registry under Michigan’s Sex Offender Registration Act. MCL 771.2(10)(g).
- Any offense for which the defense of insanity was asserted. MCL 771.2(10)(h).
- Human trafficking offense from MCL 750.462a through MCL 750.462h. MCL 771.2(10)(i).
Upon notification, the sentencing court may review the case and the probationer’s conduct while on probation to determine whether the probationer’s behavior warrants an early discharge. MCL 771.2(5). Unless the probationary crime was any felony offense involving a victim or misdemeanor domestic violence offense, if the court determines that the probationer’s behavior warrants a reduction in the probationary term, then the court may grant an early discharge from probation without holding a hearing. Id. “If, after reviewing the case, the court determines that the probationer’s behavior does not warrant an early discharge, the court must conduct a hearing to allow the probationer to present his or her case for an early discharge and find on the record any specific rehabilitation goal that has not yet been achieved or a specific, articulable, and ongoing risk of harm to a victim that can only be mitigated with continued probation supervision.” MCL 771.2(6).
If the probationary crime is a felony offense involving a victim or misdemeanor domestic violence offense, “[t]he sentencing court SHALL hold a hearing before granting early discharge.” MCL 771.2(7). “The prosecutor shall notify the victim of the date and time of the hearing and the victim must be given an opportunity to be heard.” MCL 771.2(8).
“Before granting early discharge to a probationer who owes outstanding restitution, the court must consider the impact of early discharge on the victim and the payment of outstanding restitution.” MCL 771.2(5), MCL 771.2(7). “If a probationer has made a good-faith effort to pay restitution and is otherwise eligible for early discharge, the court may grant early discharge or retain the probationer on probation up to the maximum allowable probation term for the offense, with the sole condition of continuing restitution payments.” Id.
However, “[a] probationer must not be considered ineligible for early discharge because of an inability to pay for the conditions of his or her probation, or for outstanding court-ordered fines, fees, or costs, so long as the probationer has made good-faith efforts to make payments.” MCL 771.2(4). Regardless, “nothing relieves a probationer from his or her court-ordered financial obligations after discharge from probation.” Id. These unpaid items continue as a judgment item after release from court supervision.
A skilled criminal defense lawyer can be of assistance to you in persuading the judge to discharge you from probation early. “Getting off paper” ahead of schedule will reduce interruptions in your work and social life, save money on probation oversight fees, and provide peace of mind that your daily activities are no longer being monitored by the court. This can help you get your fresh start much sooner.
If you or a loved one have further questions about early discharge from probation or need legal representation, then do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC for assistance today.