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Monograph 7: Probation RevocationUpdates: January 2, 2013–May 1, 2013

Updates have been issued for Monograph 7: Probation Revocation. A summary ofeach update appears below. The updates have been integrated into the websiteversion of the monograph. Clicking on the links below will take you to the page(s)in the monograph where the updates appear. The text added or changed in eachupdate is underlined.

7.1 Proceedings Discussed in This Monograph

Effective January 9, 2013, 2012 PA 616 added the ProbationSwift and Sure Sanctions Act, MCL 771A.1 et seq., establishing avoluntary, grant-funded “state swift and sure sanctionsprogram” for the supervision of participating offenders whohave been placed on probation for committing a felony. UnderMCL 771A.4(2), a circuit court may apply to the State CourtAdministrative Office (SCAO) for a grant to fund a swift andsure probation supervision program, under which participatingprobationers are subject to close monitoring and to promptarrest and the immediate imposition of sanctions following aprobation violation. See MCL 771A.3; MCL 771A.5(1).

7.2(A)(2) Rules Applicable to Probation Revocation Proceedings

Effective January 9, 2013, 2012 PA 616 added the ProbationSwift and Sure Sanctions Act, MCL 771A.1 et seq., establishing avoluntary, grant-funded “state swift and sure sanctionsprogram” for the supervision of participating offenders whohave been placed on probation for committing a felony. UnderMCL 771A.4(2), a circuit court may apply to the State CourtAdministrative Office (SCAO) for a grant to fund a swift andsure probation supervision program, under which participatingprobationers are subject to close monitoring and to prompt

Michigan Judicial Institute © 2013 Page 1 of 4

Monograph 6: Pretrial Motions—Third Edition

arrest and the immediate imposition of sanctions following aprobation violation. See MCL 771A.3; MCL 771A.5(1).

7.3(E)(1) Due Process Considerations

Effective January 9, 2013, 2012 PA 623 amended MCL 791.236 toadd MCL 791.236(19), providing that a parole order must“require the parolee to provide written consent to submit to asearch of his or her person or property upon demand by a peaceofficer or parole officer.”

7.5 Time Requirements and Due Diligence


7.9(C) Issuance of Arrest Warrant or Summons to Appear


7.10 Arraignment

Effective January 9, 2013, 2012 PA 616 added the ProbationSwift and Sure Sanctions Act, MCL 771A.1 et seq., establishing avoluntary, grant-funded “state swift and sure sanctionsprogram” for the supervision of participating offenders whohave been placed on probation for committing a felony. Under

Page 2 of 4 Michigan Judicial Institute © 2013


MCL 771A.4(2), a circuit court may apply to the State CourtAdministrative Office (SCAO) for a grant to fund a swift andsure probation supervision program, under which participatingprobationers are subject to close monitoring and to promptarrest and the immediate imposition of sanctions following aprobation violation. See MCL 771A.3; MCL 771A.5(1).

7.13 Sentencing


7.17 Probation Swift and Sure Sanctions Act


Michigan Judicial Institute © 2013 Page 3 of 4


Page 4 of 4 Michigan Judicial Institute © 2013

Criminal Procedure Monograph Series 1–9Monograph 7: Probation Revocation—Fourth Edition

MICHIGAN JUDICIAL INSTITUTE © 2013

Monograph 7: Probation Revocation—Fourth Edition

Michigan Supreme Court

The Honorable Robert P. Young, Jr., Chief Justice

The Honorable Michael F. Cavanagh, the Honorable Stephen J.Markman, the Honorable Mary Beth Kelly, the HonorableBrian K. Zahra, the Honorable Bridget M. McCormack, theHonorable David F. Viviano, Justices

The Honorable Chad C. Schmucker, State Court Administrator

Mr. Matthew Schneider, Chief of Staff and Supreme Court GeneralCounsel

Michigan Judicial Institute Staff

Dawn F. McCarty, Director

Anne M. DeMarco, Program Assistant

Rachael Drenovsky, Learning Center Coordinator

Amy Feinauer, Program Assistant

Bradene Moore, Judicial Education Analyst

Kimberly Muschong, Research Attorney

Sarah Roth, Publications Manager

Corrie S. Schmidt-Parker, Research Attorney

Lisa Schmitz, Research Attorney

Teri Scott, Administrative Assistant

Peter C. Stathakis, Program Manager

Cathy Weitzel, Training & Development Specialist

This fourth edition was initially published in 2013, and the text has beenrevised, reordered, and updated through May 1, 2013. This benchbook is notintended to be an authoritative statement by the Justices of the MichiganSupreme Court regarding any of the substantive issues discussed.


Acknowledgments

Work on the fourth edition of this benchbook was overseen by anEditorial Advisory Committee facilitated by MJI Publications ManagerSarah Roth and MJI Research Attorney Kimberly Muschong, who revisedthis edition of the benchbook. Amy Feinauer, MJI Program Assistant,also assisted in the publication of this benchbook.

MJI gratefully acknowledges the time, helpful advice, and expertisecontributed by the Committee members, who are as follows:

Robert J. Andretz, Criminal Defense AttorneyBarone Defense Firm, Birmingham

Elizabeth A. Barber, Trial Court Collections Project ManagerState Court Administrative Office, Trial Court ServicesDivision

Jill Booth, Management AnalystState Court Administrative Office, Trial Court ServicesDivision

Thomas R. Grden, Chief of Appellate Division Oakland County Prosecutor’s Office

The Honorable J. Richardson JohnsonKalamazoo County Circuit Court, Trial Division

Michael Keck, Prison Reentry SpecialistMichigan Department of Corrections, Field OperationsAdministration—Outstate Region

The Honorable Timothy M. Kenny, Presiding JudgeWayne County Circuit Court, Criminal Division

The Honorable Kirk W. Tabbey, Chief Judge14A District Court, Washtenaw County


Criminal Procedure Monograph 7: Probation Revocation—Fourth Edition ispart of MJI’s Criminal Procedure Monograph Series. The series containsthe following titles:

Monograph 1: Issuance of Complaints & Arrest Warrants—Fourth Edition

Monograph 2: Issuance of Search Warrants—Fourth Edition

Monograph 3: Misdemeanor Arraignments & Pleas—ThirdEdition

Monograph 4: Felony Arraignments & Pleas—Third Edition

Monograph 5: Preliminary Examinations—Third Edition



Monograph 8: Felony Sentencing—Revised Edition

Monograph 9: Postconviction Proceedings

The Michigan Judicial Institute (MJI) was created in 1977 by the MichiganSupreme Court. MJI is responsible for providing educational programs and writtenmaterials for Michigan judges and court personnel. In addition to formal seminarofferings, MJI is engaged in a broad range of publication activities, services, andprojects that are designed to enhance the professional skills of all those serving in theMichigan court system. MJI welcomes comments and suggestions. Please send themto: Michigan Judicial Institute, Hall of Justice, P.O. Box 30205, Lansing, MI48909, (517) 373-7171.

Probation Revocation

Part A—Governing Law and Principles7.1 Proceedings Discussed in This Monograph .......................................... 7-27.2 Rules Applicable to Probation Revocation Proceedings ...................... 7-37.3 Due Process Considerations................................................................. 7-97.4 Conduct That Constitutes a Probation Violation................................ 7-227.5 Time Requirements and Due Diligence.............................................. 7-327.6 Notice of Alleged Violation and of Right to Hearing .......................... 7-347.7 Judges Who May Preside Over Revocation Proceedings ................... 7-397.8 Procedures for Handling Cases Under the Interstate Compact for

Adult Offender Supervision................................................................ 7-41

Part B—Probation Revocation Procedure7.9 Issuance of Arrest Warrant or Summons to Appear .......................... 7-417.10 Arraignment ....................................................................................... 7-447.11 Guilty or Nolo Contendere Plea ......................................................... 7-487.12 Violation Hearing................................................................................ 7-527.13 Sentencing.......................................................................................... 7-617.14 Fines, Costs, and Restitution .............................................................. 7-737.15 Appeal ................................................................................................ 7-757.16 Juveniles ............................................................................................. 7-787.17 Probation Swift and Sure Sanctions Act............................................. 7-83

Part C—Quick Reference Materials7.18 How to Use the Flowchart and Checklists.......................................... 7-867.19 Probation Revocation Flowchart........................................................ 7-877.20 Checklist 1: Arraignment—MCR 6.445(B) .......................................... 7-887.21 Checklist 2: Guilty or Nolo Contendere Plea—MCR 6.445(F)............. 7-897.22 Checklist 3: Contested Hearing—MCR 6.445(E)................................. 7-907.23 Checklist 4: Sentencing—MCR 6.445(G); MCR 6.425(B);

MCR 6.425(E)...................................................................................... 7-91

Michigan Judicial Institute © 2013 7-1

Section 7.1 Monograph 7: Probation Revocation—Fourth Edition

Part A—Governing Law and Principles

7.1 Proceedings Discussed in This MonographThis monograph discusses the procedures for conducting probationrevocation proceedings. Rules governing the imposition of probation arebriefly discussed only when relevant to revocation of probation. Seegenerally MCL 771.1–MCL 771.3c.

Part A of this monograph addresses topics including due processrequirements applicable to probation revocation proceedings, the typesof conduct that may justify revocation, and general time and noticerequirements for initiating and pursuing revocation. Part B discussesprobation revocation procedure, from the issuance of a warrant orsummons to the filing of an appeal or application for leave to appeal. PartC contains quick reference materials, including a probation revocationflowchart and checklists for arraignment, entry of a plea, contestedhearings, and sentencing.

The rules and procedures discussed in this monograph apply to juvenileswho are tried as adults following traditional waiver proceedings, as wellas to juveniles who are tried and sentenced as adults in designated andautomatic waiver proceedings. However, different rules apply torevocation of juvenile probation, which may be imposed as a juveniledisposition in a delinquency, designated, or automatic waiverproceeding. Revocation of probation in cases involving juveniles isbriefly discussed in Section 7.16.

Section 7.17 discusses the Probation Swift and Sure Sanctions Act,1 underwhich courts may apply for participation in the voluntary, grant-fundedstate swift and sure sanctions program. A program of probationsupervision implemented under the Probation Swift and Sure SanctionsAct is subject to requirements in addition to those imposed by thegenerally-applicable statutes and court rules that are discussedthroughout this monograph.

For related topics, see the following:

Imposition of probation, Michigan Judicial Institute’s CriminalProcedure Monograph 8: Felony Sentencing, Part H

Deferred adjudication of guilt, Michigan Judicial Institute’sCriminal Procedure Monograph 8: Felony Sentencing, Part H

1 MCL 771A.1 et seq.

7-2 Michigan Judicial Institute © 2013

http://courts.mi.gov/education/mji/Publications/Documents/Mono-8-Felony-Sentencing.pdf



http://legislature.mi.gov/doc.aspx?mcl-771-3c

http://legislature.mi.gov/doc.aspx?mcl-771-1

http://legislature.mi.gov/doc.aspx?mcl-771A-1

Monograph 7: Probation Revocation—Fourth Edition Section 7.2

Delayed, conditional, or suspended sentencing, MichiganJudicial Institute’s Criminal Procedure Monograph 8: FelonySentencing, Part H

Imposition and revocation of youthful trainee status under theHolmes Youthful Trainee Act (HYTA), Michigan JudicialInstitute’s Criminal Procedure Monograph 8: Felony Sentencing,Part H

Special alternative incarceration (SAI) units (“boot camp”),Michigan Judicial Institute’s Criminal Procedure Monograph 8:Felony Sentencing, Part H

Imposition of probation in juvenile delinquency cases,Michigan Judicial Institute’s Juvenile Justice Benchbook, Chapter10

Probation violations in cases involving juvenile dispositions,including delinquency and designated proceedings, MichiganJudicial Institute’s Juvenile Justice Benchbook, Chapter 11

Probation violations in juvenile designated cases in which thecourt has delayed imposition of an adult sentence, MichiganJudicial Institute’s Juvenile Justice Benchbook, Chapter 15, Part F

Imposition and revocation of probation in juvenile automaticwaiver cases in which juvenile probation and commitment areordered, Michigan Judicial Institute’s Juvenile Justice Benchbook,Chapter 16

7.2 Rules Applicable to Probation Revocation Proceedings

A. Governing Statutory Authority

Probation proceedings are governed by MCL 771.1 et seq. Theimposition of probation, including duration, conditions, placementin special incarceration programs, supervision fees, termination,and discharge, is governed by MCL 771.1—MCL 771.3c, MCL 771.5,and MCL 771.6.2 Rules governing probation revocation andimposition of sentence are contained in MCL 771.4, MCL 771.4a,MCL 771.7, MCL 771.14, and MCL 771.14a.

2 For general discussion of the imposition of probation, see the Michigan Judicial Institute’s CriminalProcedure Monograph 8: Felony Sentencing, Part H.







http://courts.mi.gov/education/mji/Publications/Documents/Juvenile-Justice.pdf






http://legislature.mi.gov/doc.aspx?mcl-771-14a







http://legislature.mi.gov/doc.aspx?mcl-771-3c




1. Probation Revocation: § 771.4

In cases involving adults or juveniles who are sentenced toadult probation,3 MCL 771.4 contains the general standard forprobation revocation. This statute provides the sentencingcourt broad discretion to revoke probation:

It is the intent of the legislature that the granting ofprobation is a matter of grace conferring no vestedright to its continuance. If during the probationperiod the sentencing court determines that theprobationer is likely again to engage in anoffensive or criminal course of conduct or that thepublic good requires revocation of probation, thecourt may revoke probation. All probation ordersare revocable in any manner the court thatimposed probation considers applicable either fora violation or attempted violation of a probationcondition or for any other type of antisocialconduct or action on the probationer’s part forwhich the court determines that revocation isproper in the public interest. . . .

MCL 771.4 also provides general procedural guidance forprobation revocation proceedings:

Hearings on the revocation shall be summary andinformal and not subject to the rules of evidence orof pleadings applicable in criminal trials. In itsprobation order or by general rule, the court mayprovide for the apprehension, detention, andconfinement of a probationer accused of violatinga probation condition or conduct inconsistent withthe public good. The method of hearing andpresentation of charges are within the court’sdiscretion, except that the probationer is entitled toa written copy of the charges constituting the claimthat he or she violated probation and to aprobation revocation hearing. The court mayinvestigate and enter a disposition of theprobationer as the court determines best serves thepublic interest. If a probation order is revoked, thecourt may sentence the probationer in the samemanner and to the same penalty as the court mighthave done if the probation order had never beenmade. . . .

3 See Section 7.16 for discussion of revocation of juvenile probation.





2. Additional Provisions

Additional relevant statutory provisions include:

MCL 771.3(8) (permitting revocation of probation ifthe probationer fails to make a good faith effort tocomply with an order to pay costs imposed as acondition of probation)4

MCL 771.4a (requiring revocation of probation if theprobationer willfully violates the Sex OffendersRegistration Act (SORA), MCL 28.721 et seq.)

MCL 771.7 (governing revocation of juvenileprobation in automatic waiver proceedings)5

MCL 771.14 (governing presentence investigationreports)

MCL 771.14a (governing presentence investigationreports in juvenile automatic waiver proceedings)6

MCL 771A.1 et seq. (governing voluntary, grant-funded swift and sure probation supervisionprograms established under the Probation Swift andSure Sanctions Act)7

B. Governing Court Rules

MCR 6.445 sets forth the required procedures for probationrevocation proceedings in felony cases. See MCR 6.001(A). Inmisdemeanor cases, MCR 6.445(A)-(G) apply. See MCR 6.001(B).

MCR 6.445 provides:

(A) Issuance of Summons; Warrant. On findingprobable cause to believe that a probationer has violateda condition of probation, the court may

4 However, a sentence that exposes an indigent offender to incarceration unless he or she pays fines, costs,or restitution violates the Equal Protection Clauses of the state and federal constitutions because it resultsin unequal punishments based on economic status. See Tate v Short, 401 US 395, 397-400 (1971); People vCollins (Richard), 239 Mich App 125, 135-136 (1999). See Section 7.4(A)(2) for additional discussion ofrevocation of probation for failure to pay restitution, costs, or fees.5 See Section 7.16 for discussion of juvenile probation.6 See Section 7.16 for discussion of juvenile probation.7 A program of probation supervision implemented under the Probation Swift and Sure Sanctions Act issubject to requirements in addition to those imposed under the generally-applicable statutes and courtrules that are discussed throughout this monograph. See Section 7.17 for discussion of swift and sureprobation supervision programs.



http://courts.mi.gov/Courts/MichiganSupremeCourt/CurrentCourtRules/1Chapter6CriminalProcedure.pdf














(1) issue a summons in accordance with MCR6.103(B) and [MCR 6.103](C) for the probationer toappear for arraignment on the alleged violation, or

(2) issue a warrant for the arrest of the probationer.

An arrested probationer must promptly be broughtbefore the court for arraignment on the allegedviolation.

(B) Arraignment on the Charge. At the arraignment onthe alleged probation violation, the court must

(1) ensure that the probationer receives writtennotice of the alleged violation,

(2) advise the probationer that

(a) the probationer has a right to contest thecharge at a hearing, and

(b) the probationer is entitled to a lawyer’sassistance at the hearing and at all subsequentcourt proceedings, and that the court willappoint a lawyer at public expense if theprobationer wants one and is financiallyunable to retain one,

(3) if requested and appropriate, appoint a lawyer,

(4) determine what form of release, if any, isappropriate, and

(5) subject to [MCR 6.445](C), set a reasonablyprompt hearing date or postpone the hearing.

(C) Scheduling or Postponement of Hearing. Thehearing of a probationer being held in custody for analleged probation violation must be held within 14 daysafter the arraignment or the court must order theprobationer released from that custody pending thehearing. If the alleged violation is based on a criminaloffense that is a basis for a separate criminalprosecution, the court may postpone the hearing for theoutcome of that prosecution.

(D) Continuing Duty to Advise of Right to Assistanceof Lawyer. Even though a probationer charged withprobation violation has waived the assistance of alawyer, at each subsequent proceeding the court must







comply with the advice and waiver procedure in MCR6.005(E).

(E) The Violation Hearing.

(1) Conduct of the Hearing. The evidence against theprobationer must be disclosed to the probationer.The probationer has the right to be present at thehearing, to present evidence, and to examine andcross-examine witnesses. The court may consideronly evidence that is relevant to the violationalleged, but it need not apply the rules of evidenceexcept those pertaining to privileges. The state hasthe burden of proving a violation by apreponderance of the evidence.

(2) Judicial Findings. At the conclusion of thehearing, the court must make findings inaccordance with MCR 6.403.

(F) Pleas of Guilty. The probationer may, at thearraignment or afterward, plead guilty to the violation.Before accepting a guilty plea, the court, speakingdirectly to the probationer and receiving theprobationer’s response, must

(1) advise the probationer that by pleading guiltythe probationer is giving up the right to a contestedhearing and, if the probationer is proceedingwithout legal representation, the right to a lawyer’sassistance as set forth in [MCR 6.445](B)(2)(b),

(2) advise the probationer of the maximumpossible jail or prison sentence for the offense,

(3) ascertain that the plea is understandingly,voluntarily, and accurately made, and

(4) establish factual support for a finding that theprobationer is guilty of the alleged violation.[8]

(G) Sentencing. If the court finds that the probationerhas violated a condition of probation, or if theprobationer pleads guilty to a violation, the court maycontinue probation, modify the conditions of probation,extend the probation period, or revoke probation and

8 Although not directly contemplated in the court rule, a probationer may also enter, and the court mayaccept, a plea of nolo contendere to a probation violation charge. People v Kreigh, 165 Mich App 697, 699(1988) (construing former MCR 6.111(E), which contains substantially similar language as MCR 6.445(C)).









impose a sentence of incarceration. The court may notsentence the probationer to prison without havingconsidered a current presentence report and havingcomplied with the provisions set forth in MCR 6.425(B)and [MCR 6.425](E).

(H) Review.

(1) In a case involving a sentence of incarcerationunder [MCR 6.445](G), the court must advise theprobationer on the record, immediately afterimposing sentence, that

(a) the probationer has a right to appeal, if theunderlying conviction occurred as a result ofa trial, or

(b) the probationer is entitled to file anapplication for leave to appeal, if theunderlying conviction was the result of a pleaof guilty or nolo contendere.

(2) In a case that involves a sentence other thanincarceration under [MCR 6.445](G), the courtmust advise the probationer on the record,immediately after imposing sentence, that theprobationer is entitled to file an application forleave to appeal.

The required procedures contained in MCR 6.445 are discussed indetail in Part B of this monograph.

Additional relevant court rules include:

MCR 6.005(E) (advice of continuing right to counsel atsubsequent proceedings following waiver of counsel); seeMCR 6.445(D)

MCR 6.103(B)-(C) (form, service, and return of summonsfor probationer to appear for arraignment on allegedviolation); see MCR 6.445(A)(1)

MCR 6.403 (judicial findings of fact and conclusions oflaw); see MCR 6.445(E)(2)

MCR 6.425(B) (presentence report); see MCR 6.445(G)

MCR 6.425(E) (sentencing procedure); see MCR 6.445(G)


















7.3 Due Process Considerations

A. Limited Nature of Due Process Rights Applicable in Probation Revocation Proceedings

“‘Procedural due process limits actions by the government andrequires it to institute safeguards in proceedings that affect thoserights protected by due process, such as life, liberty, or property.’” Inre Parole of Hill, ___ Mich App ___, ___ (2012), quoting Kampf vKampf, 237 Mich App 377, 382 (1999). “‘Whether the due processguarantee is applicable depends initially on the presence of aprotected “property” or “liberty” interest.’” In re Parole of Hill, ___Mich App at ___, quoting Hanlon v Civil Serv Comm’n, 253 Mich App710, 723 (2002); see also Morrissey v Brewer, 408 US 471, 481 (1972);Williams v Hofley Mfg Co, 430 Mich 603, 610 (1988).

“[A] sentence of supervised release necessarily involves thesurrender of certain constitutional rights.” People v Glenn-Powers,296 Mich App 494, 502 (2012), citing People v Harper, 479 Mich 599,627 (2007). “Because probation occurs after the end of a criminalprosecution, probation revocation proceedings are not a stage of acriminal prosecution.” People v Breeding, 284 Mich App 471, 482(2009), citing Gagnon v Scarpelli, 411 US 778, 782 (1973); Morrissey,408 US at 480; People v Ritter, 186 Mich App 701, 705 (1991); see alsoPeople v Rial, 399 Mich 431, 435 (1976). Therefore, “a probationer in aprobation revocation hearing is not entitled to the full range of dueprocess rights associated with a criminal trial.” Breeding, 284 MichApp at 481 n 3, citing Ritter, 186 Mich App at 705-706; see alsoMorrissey, 408 US at 480. For example, a probationer “‘may . . . facerevocation of probation, and possible incarceration, in proceedingsin which the trial rights of a jury and proof beyond a reasonabledoubt,[9] among other things, do not apply.’” Samson v California, 547US 843, 849 (2006), quoting United States v Knights, 534 US 112, 120(2001); see also Harper, 479 Mich at 627.

Nevertheless, “[p]robation revocation[] . . . does result in a loss ofliberty[,]” and “a probationer [therefore cannot] be denied dueprocess[.]” Gagnon, 411 US at 782, 782 n 4. However, “[i]nherent inthe very nature of probation is that probationers ‘do not enjoy “theabsolute liberty to which every citizen is entitled.”’” Knights, 534 USat 119 (emphasis supplied; citations omitted). Rather, “[p]robation is‘one point . . . on a continuum of possible punishments rangingfrom solitary confinement in a maximum-security facility to a fewhours of mandatory community service[,]’” id. at 119, quoting

9 “The state has the burden of proving a [probation] violation by a preponderance of the evidence.” MCR6.445(E)(1).





Griffin v Wisconsin, 483 US 868, 874 (1987), and “probationrevocation deprives a probationer of the conditional liberty that isproperly dependent on observance of the terms of the probationorder, rather than the absolute liberty to which every citizen isentitled,” Breeding, 284 Mich App at 481 n 3, citing Ritter, 186 MichApp at 705-706.

The due process rights “of one who is a probationer . . . onlybecause he [or she] has [already] been convicted of a crime[]” are“more limited” than the rights applicable to a defendant in acriminal prosecution, Gagnon, 411 US at 789, “allow[ing] forprocedures that are more flexible than those required during acriminal prosecution[,]” Breeding, 284 Mich App at 483-484; see alsoRial, 399 Mich at 435. “‘Due process requires only that therevocation proceedings be conducted in a fundamentally fairmanner.’” People v Belanger, 227 Mich App 637, 645 (1998), quotingRitter, 186 Mich App at 706.

B. Morrissey / Gagnon Minimum Due Process Requirements

In Gagnon, 411 US at 782, 782 n 3, 786-787, the United StatesSupreme Court adopted, for purposes of the revocation ofprobation, the “‘minimum requirements of due process’” that wereset out in Morrissey, 408 US at 484-489, for the “constitutionallyindistinguishable” revocation of parole. Under this constitutionalframework, there are “two important stages”: (1) the arrest anddetention of the probationer for a violation of probation, and (2) theformal revocation of probation. Morrissey, 408 US at 485, 487;Gagnon, 411 US at 781-782, 784. “[A] probationer[] . . . is entitled to[both] a preliminary and a final revocation hearing, under theconditions specified in Morrissey[, 408 US at 484-489].”

1. Preliminary Hearing

After a probationer is arrested for an alleged probationviolation, he or she is entitled to “an inquiry . . . in the nature ofa ‘preliminary hearing’ to determine whether there is probablecause or reasonable ground to believe that the arrested[probationer] has committed acts that would constitute aviolation of [probation] conditions.” Morrissey, 408 US at 485;see Gagnon, 411 US at 782. At this stage, a probationer isentitled to (1) notice of the preliminary hearing and of thealleged violation(s); (2) the opportunity to appear and presentevidence at the hearing; (3) the right, if requested, to confrontan adverse witness, unless the hearing officer determines thatconfrontation of the witness would subject him or her to a riskof harm; (4) a determination, by “an independent



decisionmaker[,]” whether probable cause exists to believe thata condition of probation has been violated; and (5) a writtenreport by the hearing officer. Gagnon, 411 US at 786; Morrissey,408 US at 485-487.

2. Final Revocation Hearing

“[I]f it is desired by the [probationer], prior to the final decisionon revocation” and “within a reasonable time after [he or she]is taken into custody[,]”10 the probationer is entitled to ahearing “lead[ing] to a final evaluation of any contestedrelevant facts and consideration of whether the facts asdetermined warrant revocation.” Morrissey, 408 US at 487-488;see Gagnon, 411 US at 786. “[T]he ‘minimum requirements ofdue process’” at this “less summary” final hearing are “verysimilar” to those applicable at the preliminary hearing,including:

“(a) written notice of the claimed violations of[probation]; (b) disclosure to the [probationer] ofevidence against him [or her]; (c) opportunity to beheard in person and to present witnesses anddocumentary evidence; (d) the right to confrontand cross-examine adverse witnesses (unless thehearing officer specifically finds good cause for notallowing confrontation); (e) a ‘neutral anddetached’ hearing body[,] . . . members of whichneed not be judicial officers or lawyers; and (f) awritten statement by the factfinders as to theevidence relied on and reasons for revoking[probation].” Gagnon, 411 US at 786, quotingMorrissey, 408 US at 489.

The Morrissey Court, emphasizing that revocation is not acriminal prosecution, noted that these procedural guaranteesare not intended “to create an inflexible structurefor . . . revocation procedures[,]” but are simply part of the“informal hearing structured to assure that the finding ofa . . . violation will be based on verified facts and that theexercise of discretion will be informed by an accurateknowledge of the [probationer’s] behavior.” Morrissey, 408 USat 484, 489, 490; see also Gagnon, 411 US at 781-782.

10 The Morrissey Court noted that “[a] lapse of two months[] . . . would not appear to be unreasonable.”Morrissey, 408 US at 488.



3. Compliance with Morrissey / Gagnon in Michigan

Michigan’s probation revocation procedure consists of ajudicial finding of probable cause for issuance of a warrant orsummons, followed by arraignment, a violation hearing, andsentencing. See MCR 6.445(A)-(G); see also People v Jackson(Leroy), 63 Mich App 241, 246-247 (1975). Although thisprocedure does not typically include separate “preliminary”and “final” revocation hearings, the preliminary probablecause determination and subsequent single revocation hearingrequired in Michigan “far exceed[] the minimum due processrequirements set forth in Morrissey[, 408 US 471,] and Gagnon[,411 US 778].” Triplett v Deputy Warden, Jackson Prison, 142 MichApp 774, 782-783 (1985), citing Jackson (Leroy). In Jackson(Leroy), 63 Mich App at 246-248, the Court explained how themany protections afforded to Michigan probationers morethan sufficiently satisfy these constitutional requirements:

[Under] the Michigan procedure for revocation ofprobation pursuant to MCL 771.4[,] . . . a probationofficer files a petition with the court alleging aprobation violation. If the probationer is not incustody, the judge determines whether probablecause exists to believe that the probationer hasviolated one or more of the conditions ofprobation. In the event probable cause exists abench warrant is issued for the probationer’sarrest.[11] Upon apprehension the probationer isbrought before the court at the “earliestopportunity”.

* * *

In Michigan the probationer must be served withwritten notice of the charges against him [or her]prior to the hearing. . . . At the hearing theprobationer is entitled to produce witnesses andevidence as well as to cross-examine and confrontwitnesses. . . . The state must present proof ofviolation of the charges. . . . Evidence of the chargeis the only factor to be considered in determiningwhether to revoke probation. . . . There must be arecord of the hearing that demonstrates the dueprocess requirements have been satisfied. . . . If theprobationer desires, he [or she] is entitled to

11 Under MCR 6.445(A)(1), a court may alternatively elect to issue a summons to appear for arraignmenton the alleged violation.






representation by counsel. . . . The probationer isentitled to an appeal as of right[12] followingdetermination of a probation violation on thosematters relating to the probation violation and thehearing thereon. . . .

. . . [T]his alternative procedure does not violateGagnon or Morrissey. “Although Gagnon andMorrissey ‘mandate’ two hearings—preliminaryand final—those decisions dealt withadministrative revocations of parole or probation.We deal [in Michigan] rather with judicialrevocation of probation where procedures andprocesses differ and where a decision is made bythe repository of ‘due process’—thecourts.” . . . Michigan’s judicial warrant procedurecoupled with the strict due process requirementsof the revocation hearing is constitutionally equalor superior to the preliminary “minimal inquiry”hearing and final revocation hearing procedurerequired by Morrissey and Gagnon. [Citationsomitted.]

Subsequent Court of Appeals cases suggest that if there is anunusually lengthy delay between arrest or issuance of thenotice of probation violation and the revocation hearing, aseparate probable cause determination should be made. SeePeople v Irving, 116 Mich App 147, 151 (1982) (“‘[t]his Court hasheld several times that the due process requirements ofMorrissey[] . . . and Gagnon[] . . . are satisfied by Michigan’ssingle revocation hearing procedure if that hearing is heldsufficiently close in time to the notice of the probation violation[]’”)(emphasis supplied; citations omitted); People v Miller (Buford),77 Mich App 381, 384-386 (1977) (holding that a nearly five-month delay between issuance of the notice of violation andthe single revocation hearing comported with due process,despite the omission of a separate probable cause hearing,because “[the d]efendant’s hearing, as originally scheduled,was sufficiently close in time [to the notice of violation,and] . . . [s]ubsequent delays were due solely to adjournmentsrequested by defense counsel[]”). MCR 6.445(C) addresses thepotential due process concerns associated with such a delay byrequiring the probationer’s release if the revocation hearing isnot held within 14 days after arraignment.13

12 An appeal of right is not available to a probationer whose underlying conviction was the result of a guiltyor nolo contendere plea. See MCR 6.445(H)(1)(b). See Section 7.15 for discussion of appeal followingprobation revocation.





C. Right to Counsel

1. Federal Constitutional Right to Counsel During Revocation Proceedings and Sentencing

“[A]n indigent criminal defendant has the right to appointedcounsel ‘at every stage of a criminal proceeding wheresubstantial rights of a criminal accused may be affected.’” In reParole of Hill, ___ Mich App at ___, quoting Mempa v Rhay, 389US 128, 134 (1967). Because probation revocation is not itself astage of a criminal prosecution, the states are not “under aconstitutional duty to provide counsel for indigents in allprobation . . . revocation cases.” Gagnon, 411 US at 782, 787.

Nevertheless, due process may, in certain circumstances,require the appointment of counsel at a preliminary or finalrevocation hearing. Gagnon, 411 US at 789-791. Noting that “thepresence and participation of counsel will probably be bothundesirable and constitutionally unnecessary in mostrevocation hearings,” the Gagnon Court explained, by way ofexample, that counsel should be appointed in a case in whichthe probationer has requested counsel and claims either that heor she did not commit a violation or that “there are substantialreasons which justified or mitigated the violation and makerevocation inappropriate, and that the reasons are complex orotherwise difficult to develop or present.” Id. at 790. On theother hand, there is presumably no right to the appointment ofcounsel if the probationer admits that he or she has committedanother serious crime. Id. at 791. In considering a request forcounsel, consideration must be given to “whether theprobationer appears to be capable of speaking effectively forhimself [or herself].” Id. at 790-791.

If a request for counsel is refused, “the grounds for refusalshould be stated succinctly in the record.” Gagnon, 411 US at791.14

Because sentencing is a “‘stage of a criminal proceeding wheresubstantial rights of a criminal accused may be affected,’” anindigent probationer is entitled, under the Sixth Amendment,to the appointment of counsel if the revocation proceeding

13 See Section 7.10(D) for additional discussion of MCR 6.445(C).14 By court rule, Michigan provides broader entitlement to appointed counsel than is constitutionallyrequired. MCR 6.445(B)(2)(b) provides that any probationer facing revocation must be advised atarraignment that he or she is entitled to the appointment of counsel at the violation hearing and at allsubsequent court proceedings. MCR 6.445(B)(3) additionally provides that the court should appoint alawyer for the defendant at the arraignment “if requested and appropriate[.]” See Section 7.3(C)(2) fordiscussion of this broader right to counsel in Michigan.






involves sentencing. Gagnon, 411 US at 781, quoting Mempa,389 US at 134; see also People v Gulley, 66 Mich App 112, 117(1975); People v Brown (Charles), 17 Mich App 396, 397 (1969).15

2. Right to Counsel Afforded Under Michigan Law

A probationer’s right to the assistance of appointed counselunder Michigan law is broader than what is required under theUnited States Constitution, applying equally in all revocationproceedings. See Jackson (Leroy), 63 Mich App at 247-248(noting that the protections applicable in Michigan probationrevocation proceedings, including the right to counsel, “farexceed[]” federal constitutional requirements). “Thefundamental right to be represented by counsel is maintainedin probation revocation hearings.” Belanger, 227 Mich App at641, citing People v Kitley, 59 Mich App 71, 73 (1975) (“aprobationer at a revocation proceeding has the right tocounsel[,] . . . [and t]he trial court ha[s] the duty to advise [aprobationer] of his [or her] right to be represented by counsel,either appointed or retained[]”).16

The Michigan Court Rules reinforce that a probationer isentitled to appointed counsel upon request during allrevocation proceedings. MCR 6.445(B)(2)(b) provides that thecourt must advise the defendant at arraignment that:

the probationer is entitled to a lawyer’s assistanceat the [contested] hearing and at all subsequentcourt proceedings, and that the court will appointa lawyer at public expense if the probationer wantsone and is unable to retain one[.]

MCR 6.445(B)(3) additionally provides that the court mustappoint a lawyer for the defendant at the arraignment “ifrequested and appropriate[.]”

Moreover, “[e]ven [if] a probationer charged with probationviolation has waived the assistance of a lawyer, at each

15 See Section 7.3(C)(4) for discussion of limitations on the court’s authority to incarcerate a probationerwho was not represented by counsel at the criminal trial for the offense that led to probation or an offensethat is the basis for the revocation proceeding.16 The Kitley Court cited Mempa, 389 US 128, for the proposition that a probationer has a right to counsel“at a revocation proceeding[.]” Kitley, 59 Mich App at 73. However, Mempa, 389 US at 134, requirescounsel only at revocation proceedings that also involve sentencing. This limitation has beenacknowledged in other Court of Appeals cases. See Gulley, 66 Mich App at 117; Brown, 17 Mich App at 397.Although Kitley itself apparently involved a combination revocation/sentencing proceeding, see Kitley, 59Mich App at 73, in Belanger, 227 Mich App at 638-639, separate revocation and sentencing proceedingswere conducted.





subsequent proceeding the court must comply with the adviceand waiver procedure in MCR 6.005(E).” MCR 6.445(D).17

In addition to the appointment of counsel for an indigentprobationer, the right to counsel involves allowing a non-indigent probationer “a reasonable opportunity to obtaincounsel of his [or her] own choosing.” Gulley, 66 Mich App at117. The Court of Appeals has held that allowing a probationeronly one day to obtain counsel does not afford a “‘reasonableopportunity[.]’” Id. at 117.

3. Requirements for a Valid Waiver of Counsel

a. Due Process Requirements

Because probation revocation is not a stage of a criminalprosecution, “‘[d]ue process requires only that therevocation proceedings be conducted in a fundamentallyfair manner.’” Belanger, 227 Mich App at 645, quotingRitter, 186 Mich App at 706. Accordingly, all of theconstitutional and procedural requirements for a validinitial waiver of counsel at a criminal trial as set forth inMCR 6.005(D) and People v Anderson (Donny), 398 Mich361 (1976), do not apply. Belanger, 227 Mich App at 641-648; see also Rial, 399 Mich at 435-436.

Rather, “due process is satisfied in a probation revocationproceeding if a trial court advises a defendant of his [orher] right to counsel and the appointment of counsel, if he[or she] is indigent, and determines if there is a knowingand intelligent waiver of that right.” Belanger, 227 MichApp at 647. “‘Factors to be considered when decidingwhether [the] defendant ha[s] made a knowing waiver ofhis [or her] right to counsel are [the] defendant’s age,education, prior criminal experience, mental state,financial condition, and the various factors, pressures orinducements which led him [or her] to admit theallegations against him [or her] without the assistance ofcounsel.’” Id. at 646, quoting Kitley, 59 Mich App at 76.

b. Advice and Waiver Procedure

At arraignment, the court must advise the probationerthat he or she has the right to the assistance of appointed

17 However, all of the constitutional safeguards that normally apply before a criminal defendant may bepermitted to waive counsel do not apply in probation revocation proceedings. Belanger, 227 Mich App at641-648. See Section 7.3(C)(3) for discussion of waiver of counsel.






counsel, and the court must appoint counsel “if requestedand appropriate[.]” MCR 6.445(B)(2)(b); MCR 6.445(B)(3).

MCR 6.445(D) imposes upon the court a continuing dutyto advise the probationer of the right to counsel:

Even though a probationer charged withprobation violation has waived the assistanceof a lawyer, at each subsequent proceedingthe court must comply with the advice andwaiver procedure in MCR 6.005(E).

MCR 6.005(E) provides that if the defendant waives his orher right to the assistance of a lawyer, “the record of eachsubsequent proceeding . . . need show only that the courtadvised the defendant of the continuing right to alawyer’s assistance (at public expense if the defendant isindigent) and that the defendant waived that right.” MCR6.005(E) further provides:

Before the court begins such proceedings,

(1) the defendant must reaffirm that alawyer’s assistance is not wanted; or

(2) if the defendant requests a lawyerand is financially unable to retain one,the court must appoint one; or

(3) if the defendant wants to retain alawyer and has the financial ability to doso, the court must allow the defendant areasonable opportunity to retain one.

However, “[t]he court may refuse to adjourn a proceedingto appoint counsel or allow a defendant to retain counselif an adjournment would significantly prejudice theprosecution, and the defendant has not been reasonablydiligent in seeking counsel.” MCR 6.005(E).

The court must strictly comply with MCR 6.005(E), and afailure to do so may require reversal of a sentenceimposed following probation revocation. People vMcKinnie, 197 Mich App 458, 460-461 (1992).

The sentencing phase of a single revocation andsentencing proceeding is “not a ‘subsequent proceeding’”requiring the court to readvise the defendant of his or herright to counsel. People v Graber, 128 Mich App 185, 195(1983) (construing former GCR 1963, 791.3).












4. Sentence Imposed Following Revocation of Probation Based on Uncounseled Misdemeanor Offense

There is no federal or state constitutional right to appointedcounsel when a defendant is charged with a misdemeanor and“no incarceration is ultimately imposed[.]” People v Richert(After Remand), 216 Mich App 186, 192-194 (1996). However, noperson may receive an actual or suspended sentence for anyoffense—petty, misdemeanor, or felony—unless he or she wasrepresented by counsel at trial or knowingly and intelligentlywaived representation. Alabama v Shelton, 535 US 654, 657-659,662 (2002) (noting that no real distinction exists between“actual imprisonment” and probated or “threatened”imprisonment for purposes of an indigent defendant’s right tocounsel, and holding that an indigent defendant who is notrepresented by counsel and who has not waived the right toappointed counsel may not be given a probated or suspendedsentence of imprisonment).

MCR 6.610(F)(2)18 provides:

Unless a defendant who is entitled to appointedcounsel is represented by an attorney or haswaived the right to an attorney, a subsequentcharge or sentence may not be enhanced becauseof this conviction and the defendant may not beincarcerated for violating probation or any othercondition imposed in connection with thisconviction.

On the other hand, it appears that no due process violationwould result from the revocation of probation andincarceration of a probationer on the basis of a newuncounseled misdemeanor conviction that did not result inactual or threatened imprisonment. In People v Olah, 409 Mich948, 948-949 (1980), the Michigan Supreme Court, relying onBaldasar v Illinois, 446 US 222 (1980), held that a sentencingcourt could not revoke probation on the basis of newuncounseled misdemeanor convictions. See also People vCourtney, 104 Mich App 454, 456-457 (1981). However, Baldasarwas overruled by Nichols v United States, 511 US 738, 746-749(1994), which held that uncounseled misdemeanors notresulting in imprisonment may be used to enhance adefendant’s sentence for a subsequent offense, “even [if] thatsentence entails imprisonment.” See People v Reichenbach, 459

18 MCR 6.610 governs misdemeanor cases in district court. See MCR 6.001(B).






Mich 109, 122-124, 124 n 15 (1998) (questioning the continuingrelevance of Olah following Nichols, 511 US at 747-748, andconcluding that there is “no principled reason to divine in [theMichigan] constitution an expansion of the right to counselthat would preclude sentence enhancement basedon . . . uncounseled misdemeanors[]”).

D. Evidence and Right of Confrontation19

“Probation is a matter of grace, not of right,” and “when a judgeimposes probation, it is ‘revocable on the basis of a judge’s findingsof fact at an informal hearing, and largely at the judge’s discretion.’”Breeding, 284 Mich App at 479-480, quoting Harper, 479 Mich at 626.

“‘Probation violation hearings are summary and informal and arenot subject to the rules of evidence or of pleading applicable in acriminal trial. The scope of these proceedings is limited and the fullpanoply of constitutional rights applicable in a criminal trial do notattach.’” Breeding, 284 Mich App at 480, quoting People v Pillar, 233Mich App 267, 269 (1998). Because a probation revocation hearing isnot a criminal prosecution, “the process should be flexible enoughto consider evidence including letters, affidavits, and other materialthat would not be admissible in an adversary criminal trial.”Morrissey, 408 US at 489; see also Gagnon, 411 US at 782 n 5 (“we didnot in Morrissey intend to prohibit use where appropriate of theconventional substitutes for live testimony, including affidavits,depositions, and documentary evidence[] . . . [or] to foreclose theStates . . . from developing other creative solutions to the practicaldifficulties of the Morrissey requirements[]”).

“[T]he Sixth Amendment right to confrontation, as defined andapplied in Crawford[ v Washington, 541 US 36 (2004)20], does notapply to probation revocation proceedings.” Breeding, 284 Mich Appat 482. However, a probationer enjoys a basic due process right “‘toconfront and cross-examine adverse witnesses (unless the hearingofficer specifically finds good cause for not allowingconfrontation)[.]’” Gagnon, 411 US at 786, quoting Morrissey, 408 USat 489; see also Breeding, 284 Mich App at 484-487 (declining toaddress the defendant’s claim that he was denied the constitutionaldue process right of confrontation at his probation revocationhearing where he failed to object to alleged hearsay testimony anddid not make a request to cross-examine the adverse witnesses).

19 See Section 7.12(C) for additional discussion of the presentation of evidence at a violation hearing.20 The Crawford Court held that out-of-court “testimonial” statements are inadmissible unless thedeclarant is shown to be unavailable and there has been “a prior opportunity for cross-examination.”Crawford, 541 US at 68.



E. Search and Seizure

1. Warrantless Search of Probationer’s Residence

“[A] State’s interests in reducing recidivism and therebypromoting reintegration and positive citizenship amongprobationers . . . warrant privacy intrusions that would nototherwise be tolerated under the Fourth Amendment.” Samson,547 US at 853.

The warrantless search of a probationer’s home is reasonableunder the Fourth Amendment when conducted pursuant to astate regulation allowing a probation officer to search aprobationer’s home if there are reasonable grounds to believethat the home contains contraband, including any itemprohibited under the applicable conditions of probation.Griffin, 483 US at 870-871, 880 (declining to address theadditional question “whether[] . . . any search of aprobationer’s home by a probation officer is lawful when thereare ‘reasonable grounds’ to believe contraband is present[]”).

Additionally, the warrantless search of a probationer’s home isconstitutionally reasonable, if supported by reasonablesuspicion of criminal activity, where one of the conditions ofprobation is that the probationer will submit to a search at anytime. Knights, 534 US at 114, 120, 120 n 6, 121-122 (noting that“[t]he probation condition . . . significantly diminished [theprobationer’s] reasonable expectation of privacy[,]” butdeclining to address the additional question “whether theprobation condition so diminished, or completely eliminated,[his] reasonable expectation of privacy . . . that a search by alaw enforcement officer without any individualized suspicionwould have satisfied the reasonableness requirement of theFourth Amendment[]”).

Moreover, “the Fourth Amendment does not prohibit a policeofficer from conducting a suspicionless search of a parolee[]”under the authority of a state statute permitting a parole officeror other peace officer to search a parolee at any time, with orwithout a warrant or cause. Samson, 547 US at 846, 850, 852, 857(noting that “parolees . . . have severely diminishedexpectations of privacy by virtue of their status alone[]”).21

Presumably, this reasoning would apply equally toprobationers. See Gagnon, 411 US at 782 n 3 (“[d]espite the

21 See also MCL 791.236(19), providing that a parole order must “require the parolee to provide writtenconsent to submit to a search of his or her person or property upon demand by a peace officer or paroleofficer.”




undoubted minor differences between probation andparole, . . . revocation of probation where sentence has beenimposed previously is constitutionally indistinguishable fromthe revocation of parole[]”).

2. Warrantless Arrest

In Glenn-Powers, 296 Mich App at 501-503, the Court ofAppeals held that “the oath or affirmation requirementgenerally applicable to warrants does not apply to a warrantfor the arrest of a probationer[,]” extending to probationers therule of Triplett, 142 Mich App at 781-783, that the constitutionalprobable cause and oath or affirmation requirements do notapply to a warrant for the arrest of a parole violator. The Glenn-Powers Court, noting that under Griffin, 483 US at 876, 880, “theFourth Amendment does not require a warrant to search aprobationer’s home,” concluded that “it is [therefore] notunreasonable to conclude that [the Fourth Amendment] doesnot require a warrant to arrest a probationer.” Glenn-Powers,296 Mich App at 503.

3. Applicability of Exclusionary Rule

The United States Supreme Court has held that “the federalexclusionary rule does not bar the introduction at parolerevocation hearings of evidence seized in violation of parolees’Fourth Amendment rights.” Pennsylvania Bd of Probation &Parole v Scott, 524 US 357, 364 (1998); see also Gagnon, 411 US at782 n 3 (“[d]espite the undoubted minor differences betweenprobation and parole, . . . revocation of probation wheresentence has been imposed previously is constitutionallyindistinguishable from the revocation of parole[]”).

However, in Michigan, the exclusionary rule presumably doesapply, at least to some extent, to bar admission of illegallyseized evidence in probation revocation proceedings. In Peoplev Perry, 201 Mich App 347, 349, 349 n 1, 350-352 (1993) (leadopinion of Shepherd, J.), the panel rejected the proposition, setout “‘parenthetically’” in People v Hardenbrook, 68 Mich App640, 645 (1976), “that the exclusionary rule is inapplicable toprobation revocation hearings.” However, the three panelmembers in Perry were unable to agree on the particular test tobe applied in determining whether illegally seized evidencemust be excluded in the probation revocation context. SeePerry, 201 Mich App at 359-360 (dissenting opinion ofFitzgerald, J.) (exclusionary rule should be applied to fullextent); id. at 351 (lead opinion of Shepherd, J.) (exclusionaryrule should be applied only when “the police knew or had



reason to know that they were targeting a probationer[]”); id. at353 (concurring opinion of Griffin, P.J.) (exclusionary ruleshould be applied where, examining the totality of thecircumstances, “(1) the exclusion of the evidence wouldsubstantially further the deterrent purpose of the exclusionaryrule, and (2) the need for deterrence outweighs the harm to theprobation system[]”).

7.4 Conduct That Constitutes a Probation ViolationThe sentencing court has broad discretion to revoke probation. MCL771.4 provides, in relevant part:

If during the probation period the sentencing courtdetermines that the probationer is likely again to engage inan offensive or criminal course of conduct or that the publicgood requires revocation of probation, the court may revokeprobation. All probation orders are revocable in any mannerthe court that imposed probation considers applicable eitherfor a violation or attempted violation of a probationcondition or for any other type of antisocial conduct or actionon the probationer’s part for which the court determines thatrevocation is proper in the public interest.

A. Violation of Mandatory or Discretionary Probation Conditions

MCL 771.3(1) contains probation conditions that must be included ina probation order, such as the requirement that the probationer notviolate a criminal law, MCL 771.3(1)(a). MCL 771.3(2) containsconditions that the court, in its discretion, may include in the order,such as a requirement that the probationer participate in mentalhealth treatment, MCL 771.3(2)(h). MCL 771.3(3) allows the court to“impose other lawful conditions of probation as the circumstancesof the case require or warrant or as in its judgment are proper.”22

If a defendant is sentenced to probation according to a pleaagreement, “[the] sentencing court may place conditions on [the]defendant’s probation regardless of whether it was covered in theplea agreement[; furthermore,] the failure to inform [the] defendantof these conditions [does not] render[] the plea involuntary or thedefendant unknowing of the consequences of the agreement.”People v Johnson (Larry), 210 Mich App 630, 634-635 (1995).

22 See Section 7.4(A)(3) for discussion of “other lawful conditions of probation[.]”










1. New Criminal Charges or Convictions

MCL 771.3(1)(a) provides that a sentence of probation mustinclude the following condition:

During the term of his or her probation, theprobationer shall not violate any criminal law ofthis state, the United States, or another state or anyordinance of any municipality in this state oranother state.

“[P]robation may not be revoked solely on the basis that theprobationer was arrested[]” for an alleged new criminal offense;rather, “[t]here must be verified facts in the record from whichthe court can find by a preponderance of the evidence that aviolation was committed.” People v Pillar, 233 Mich App 267,269-270 (1998) (emphasis supplied); see also Morrissey v Brewer,408 US 471, 483-484 (1972).

a. Postponement of Probation Violation Hearing Pending Resolution of Criminal Charge

The court may, but is not required to, postpone probationrevocation proceedings pending the outcome of aseparate criminal prosecution for the offense thatconstitutes the alleged probation violation. MCR6.445(C).23

b. Double Jeopardy

A probationer is not twice placed in jeopardy for the samecriminal offense where the same criminal activity is thesubject of both probation revocation and criminalproceedings. People v Buelow, 94 Mich App 46, 47, 49(1979). Because jeopardy does not attach at a probationrevocation hearing, subsequent criminal proceedings donot violate double jeopardy prohibitions. People v Johnson(Eddie), 191 Mich App 222, 226-227 (1991).

c. Effect on Subsequent Proceeding of Acquittal or Finding of No Probation Violation

“Because the standard of proof [in a probation revocationproceeding] is lower than the reasonable doubt standardemployed in a criminal trial, probation may be revokedbefore the trial on the substantive offense, and a decision

23 See Section 7.10(D) for additional discussion of MCR 6.445(C).







to revoke probation will be valid even if the defendant isultimately acquitted of the substantive crime.” People vTebedo, 107 Mich App 316, 321 (1981); see also People vBuckner, 103 Mich App 301, 303 (1980).24 Likewise, “thesubsequent reversal of a conviction on a criminal offensewould not require vacation of a probation revocationwhich was based on that offense if the testimony or thedefendant’s admissions at the revocation hearing weresufficient to establish by a preponderance of the evidencethat the defendant committed the offense.” Tebedo, 107Mich App at 321-322 (noting, however, that “[i]f the onlything established at the [probation revocation] hearing isthat [the] defendant was convicted of the offense, thenreversal of that conviction requires reversal of theprobation revocation as well[]”) (emphasis supplied).

Conversely, a finding that a defendant did not violateprobation by committing a new criminal offense does notpreclude a criminal trial based on the same criminalconduct. Johnson (Eddie), 191 Mich App at 225-227(holding that principles of res judicata and doublejeopardy did not bar a criminal prosecution on chargesthat were determined to be unproven at the defendant’sprobation violation proceeding). The Johnson (Eddie)Court explained:

Because of the limited nature and scope of aprobation violation hearing, as a practicalmatter the prosecutor may not present all theevidence bearing on the commission of thealleged offense. The determination whetherone committed an offense for the purpose of anew conviction should be made in a criminaltrial, which is the intended forum for such adetermination, and not in an informal,summary proceeding. [Id. at 226.]

d. Guilty Plea in Criminal Prosecution Following Probation Revocation Proceeding

Holding a probation revocation proceeding beforecriminal proceedings based on the same conduct does notrender a guilty plea in those criminal proceedingsinvoluntary. People v Baines, 83 Mich App 570, 573 (1978).

24 See Section 7.12(E) for further discussion of the standard of proof in probation revocation hearings.



e. Inadmissibility of Probation Revocation Hearing Testimony at Subsequent Criminal Trial

If a probation revocation hearing is conducted prior to acriminal trial involving the same facts, the probationer’stestimony at the hearing and any evidence derived from itare inadmissible—except for purposes of impeachment orrebuttal—against the probationer at the subsequentcriminal trial, if a timely objection is made at that trial.People v Rocha, 86 Mich App 497, 512-513 (1978). “[T]heprobationer must be advised before he [or she] takes thestand at the revocation hearing that his [or her] testimonyand its fruits will not be admissible against him [or her] ata subsequent criminal trial on the underlying offense.” Id.at 513.25

f. SORA Violation

The court must revoke probation if the probationerwillfully violates the Sex Offenders Registration Act(SORA), MCL 28.721 et seq. MCL 771.4a.

2. Revocation of Probation for Failure to Pay Fines, Costs, or Restitution26

Under MCL 771.3(1)(d)-(g), mandatory conditions of probationinclude the requirements that the probationer pay a probationsupervision fee, restitution as provided in MCL 769.1 et seq., anassessment ordered under MCL 780.905, and the minimumstate cost prescribed in MCL 769.1j. Additionally, theprobationer may be required to pay a fine, MCL 771.3(2)(b);costs incurred in prosecuting or providing legal assistance toand supervision of the probationer, MCL 771.3(2)(c); MCL771.3(5); any other assessment, MCL 771.3(2)(d); or expensesincurred by the county as provided in MCL 801.81—MCL801.93, MCL 771.3(2)(p).

MCL 769.1k(1)(a) requires a court to impose the minimumstate cost as set forth in MCL 769.1j27 at the time the defendant

25 But see People v Pacholka, 451 Mich 896, 896 (1996) (statement of Boyle, J.) (opining that the Court ofAppeals in Rocha, 86 Mich App 497, may have violated separation of powers principles when it declared “‘ajudicial rule of evidence[]’ that in fact constituted the assumption of judicial authority to grant useimmunity[]” for testimony at a probation violation hearing).26 See Section 7.14 for additional discussion of fines, costs, and restitution ordered as conditions ofprobation and for discussion of the court’s retention of jurisdiction to enforce such financial obligationsfollowing termination or revocation of probation. See the Michigan Judicial Institute’s Criminal ProcedureMonograph 8: Felony Sentencing, Part G, for a comprehensive discussion of fines, costs, assessments, andrestitution ordered as part of a sentence.





http://legislature.mi.gov/doc.aspx?mcl-769-1j











http://legislature.mi.gov/doc.aspx?mcl-769-1k






is sentenced, at the time entry of judgment of guilt is deferred,or at the time sentence is delayed. At the same time, MCL769.1k(1)(b) and MCL 769.1k(2) allow the court to also impose:

any fine;

any cost in addition to the minimum state cost set outin MCL 769.1j(1);

the expenses of providing the defendant with legalassistance;

any assessment authorized by law;

reimbursement under MCL 769.1f; and

any additional costs incurred to compel thedefendant’s appearance.

MCL 769.1k(1) and MCL 769.1k(2) “apply even if thedefendant is placed on probation, probation is revoked, or thedefendant is discharged from probation.” MCL 769.1k(3).Accordingly, following revocation or discharge of probation,the court may continue to enforce an unfulfilled financialobligation imposed as a condition of probation.28

The court may revoke probation if the defendant fails tocomply with a restitution order or order to pay costs and hasnot made a good-faith effort to comply with the orders. MCL769.1a(11); MCL 771.3(8); MCL 780.766(11); MCL 780.826(11).However, a sentence that exposes an indigent offender toincarceration unless he or she pays fines, costs, or restitutionviolates the Equal Protection Clauses of the state and federalconstitutions because it results in unequal punishments basedon economic status. Tate v Short, 401 US 395, 397-400 (1971);People v Collins (Richard), 239 Mich App 125, 135-136 (1999);People v Baker, 120 Mich App 89, 99 (1982). Therefore, “the statecannot ‘imprison a person solely because he [or she] lacked theresources to pay [a fine or restitution‘; r]ather, there must be‘evidence and findings that the defendant was somehowresponsible for the failure[.]’” People v Likine, 492 Mich 367, 400(2012), quoting Bearden v Georgia, 461 US 660, 665, 667-668(1983); see also People v Ford, 410 Mich 902, 902 (1981); People vLemon, 80 Mich App 737, 741-745 (1978).

27 MCL 769.1j(1) requires imposition of the minimum state cost “if the court orders . . . any combination ofa fine, costs, or applicable assessments[.]”28 See Section 7.14 for discussion of the court’s retention of jurisdiction to enforce such financialobligations following termination or revocation of probation.














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MCL 780.766(14) states that “a [felony] defendant shall not beimprisoned, jailed, or incarcerated for a violation of probationor parole or otherwise for failure to pay restitution as orderedunder [MCL 780.766] unless the court or parole boarddetermines that the defendant has the resources to pay theordered restitution and has not made a good faith effort to doso.” MCL 780.826(14) and MCL 780.766(14) containsubstantially similar requirements for cases involvingmisdemeanants and juveniles,29 respectively. But see MCR6.931(F)(10), which prohibits a court from committing ajuvenile probationer30 to the Department of Corrections forfailure to comply with a restitution order.

Before revoking probation for failure to comply with an orderto pay costs or restitution, the court must consider theprobationer’s employment status, earning ability, and financialresources, the willfulness of the probationer’s failure to pay,and any other special circumstances that may have a bearingon the probationer’s ability to pay. MCL 769.1a(11); MCL771.3(8); MCL 780.766(11); MCL 780.826(11); see also Bearden,461 US at 668-669, 672 (“a sentencing court must inquire intothe reasons for the failure to pay[,]” and “if the probationer hasmade all reasonable efforts to pay the fine or restitution, andyet cannot do so through no fault of his [or her] own, it isfundamentally unfair to revoke probation automaticallywithout considering whether adequate alternative methods ofpunishing the defendant are available[]”).

If the court determines that restitution is not being paid or hasnot been paid as ordered, the court may revoke probation or,after considering the hardship to both the probationer andvictim, modify the method of payment; in addition, theprosecuting attorney or a person named in the restitutionorder may begin proceedings to enforce the restitution order.MCL 780.766(12)-(13); MCL 780.766(18); MCL 780.826(12)-(13);MCL 780.826(15). If the court determines that costs are notbeing paid as ordered, the court may remit all or a part of theamount due or modify the method of payment. MCL771.3(6)(b). Upon petition by the probationer, the court shouldconduct a hearing to determine whether the probation ordershould be modified. Lemon, 80 Mich App at 741-745(sentencing court abused its discretion by refusing to modifyor withdraw the restitution condition of a probation order

29 MCL 780.766(11) applies to juveniles sentenced in automatic waiver proceedings. See Section 7.16 fordiscussion of juvenile probationers.30 MCR 6.931(F)(10) applies to juveniles sentenced to juvenile probation in automatic waiver proceedings.See MCR 6.901(B). See Section 7.16 for discussion of juvenile probationers.























without a hearing where the defendant petitioned formodification of the order).

3. Violation of “Other Lawful Conditions”

MCL 771.3(3) allows the court to “impose other lawfulconditions of probation as the circumstances of the case requireor warrant or as in its judgment are proper.” This “broadlanguage . . . provides wide discretion to a trial judge in settingconditions of probation[.]” People v Peters, 191 Mich App 159,165 (1991). “[T]here is no ultimate catalog of legal or illegalterms [of probation], . . . and the Legislature did not definewhat constitutes a ‘lawful’ term of probation[.]” People v Miller(Loretta), 182 Mich App 711, 713 (1990) (citations omitted).However, in imposing such additional conditions, “asentencing court must be guided by factors that are lawfullyand logically related to the defendant’s rehabilitation.” Johnson(Larry), 210 Mich App at 634.

Successful completion of a city’s “probation enhancementprogram[,]” including adherence to the program’s rules, wasappropriately ordered as an “‘other lawful condition[] ofprobation[,]’” Peters, 191 Mich App at 160-161, 164-166, as wasa condition prohibiting the defendant, who severely beat achild at a religious encampment, from residing at theencampment during the term of probation, People v Branson,138 Mich App 455, 457-459 (1984). A condition prohibiting theprobationer from associating with an individual who has acriminal record is “generally . . . considered lawful.” Miller(Loretta), 182 Mich App at 714 (amending the trial court’s orderof a lifetime ban against the defendant’s association with anamed individual to state that the ban would be in effect“‘until further order of the court[]’”). Additionally, a probationcondition prohibiting “antisocial conduct” is notimpermissibly vague if specific examples of prohibitedconduct are set forth in the probation order or explained to theprobationer. People v Bruce, 102 Mich App 573, 576-580 (1980).

On the other hand, see People v Gauntlett, 134 Mich App 737,744, 746-752 (1984), modified on other grounds 419 Mich 909(1984) (requirement that the defendant, a sex offender, submitto Depo-Provera treatment [(“castration by chemical means”)]was not a “lawful condition[]” of probation); People v Higgins,22 Mich App 479, 482 (1970) (condition prohibiting probationerfrom playing collegiate or professional basketball appeared“more likely to impede rehabilitation than promote it[]” andwas therefore “not a ‘lawful provision’ within the meaning of”MCL 771.3).





If the appellate court determines that a condition of probationis not lawful, the appropriate remedy is to remand forresentencing. Gauntlett, 419 Mich 909.

4. Revocation Based on Unstated Conditions

Probation may not be revoked based on non-criminal conductthat is not contemplated in the probation order, People v Pippin,316 Mich 191, 193-196 (1946) (although the defendant “ispresumed to know the conditions prescribed by law[, n]o suchpresumption attaches to such other conditions as existed onlyin the mind of the judge, unexpressed to the defendant eitherorally or in the order for probation, and no violation of thesewarrants revocation of probation[]”), or based on violations ofconditions that were stated orally to the defendant duringsentencing but were not included in the written probationorder, People v George, 318 Mich 329, 332 (1947); see also People vHill (Donald), 69 Mich App 41, 42-45 (1976). See also MCL771.2(2) (“[t]he court shall by order, to be filed or entered in thecause as the court may direct by general rule or in each case, fixand determine the period and conditions of probation[]”).31

5. Violation of Conditions by Incarcerated Probationer

Where the court has properly ordered incarceration as acondition of probation, probation may be revoked for violationof other conditions of probation while the probationer isincarcerated. People v Smith (Carl), 69 Mich App 247, 250 (1976).

B. Conduct That Occurs Before Commencement of Probationary Sentence

No published Michigan appellate decision has determined whetherprobation may be revoked on the basis of conduct that occurs beforecommencement of the probationary period.32

MCL 771.4 provides that “[i]f during the probation period thesentencing court determines that the probationer is likely again toengage in an offensive or criminal course of conduct or that thepublic good requires revocation of probation, the court may revokeprobation.” (Emphasis supplied.) Additionally, a probationer“‘ha[s] a right to know the conditions with which he [or she is]

31 Note, however, that a “court may amend the order in form or substance at any time.” MCL 771.2(2).32 See, however, People v Fraser, unpublished opinion per curiam of the Court of Appeals, issued October25, 2012 (Docket No. 305276), discussed infra. Unpublished opinions are not precedentially binding underthe rule of stare decisis, MCR 7.215(C)(1).


http://courts.mi.gov/Courts/MichiganSupremeCourt/CurrentCourtRules/1Chapter7AppellateRules.pdf

http://publicdocs.courts.mi.gov:81/opinions/final/coa/20121025_c305276_39_305276.opn.pdf






required to comply.’” George, 318 Mich at 332, quoting Pippin, 316Mich at 196. Therefore, the decision to revoke probation may not bebased on conduct that is not prohibited by the conditions ofprobation. George, 318 Mich App at 332-333; People v Elbert, 21 MichApp 677, 681-682 (1970).

In People v Fraser, unpublished opinion per curiam of the Court ofAppeals, issued October 25, 2012 (Docket No. 305276), slip op pp 1-2, the Court held that the defendant’s probation was properlyrevoked on the basis of criminal conduct that occurred after he wassentenced to probation, but before the order of probation wassigned. Noting that the prohibition against violating a criminal lawis a mandatory condition of probation under MCL 771.3(1)(a) that,under George, 318 Mich at 332, “[the] defendant was presumed toknow[,]” the Fraser Court concluded that “the trial court did notabuse its discretion when it revoked [the] defendant’s probation fora violation of [this] mandatory condition that occurred aftersentencing but before the order of probation entered.” Fraser,unpublished opinion per curiam at 2.

Similarly, the United States Court of Appeals for the Sixth Circuit,applying the federal probation statute,33 has held that probationmay be revoked based on conduct occurring after imposition butbefore commencement of the probationary sentence. United States vWilliams, 15 F3d 1356, 1358-1360 (CA 6, 1994) (holding that“[n]othing in the language of [the federal probation] statute limitsthe authority of a court to revoke probation to conduct occurringwithin the period of probation[]”).34 However, the Sixth Circuit hasheld that probation may not be revoked on the basis of “conductwhich occurs prior to the date on which the defendant wassentenced to probation.” United States v Twitty, 44 F3d 410, 412-413(CA 6, 1995) (noting that “[d]ue process requires[] . . . notice or fairwarning of what conduct might result in revocation[,]” andconcluding that “one can[not] violate a condition of probationbefore it exists[]”).

33 18 USC 3565(a) authorizes revocation of probation “[i]f the defendant violates a condition of probationat any time prior to the expiration or termination of the term of probation[.]” (Emphasis supplied.)Somewhat differently, MCL 771.4 provides that “[i]f during the probation period the sentencing courtdetermines that the probationer is likely again to engage in an offensive or criminal course of conduct orthat the public good requires revocation of probation, the court may revoke probation.” (Emphasissupplied.)34 Though persuasive, Michigan state courts “are not . . . bound by the decisions of lower federal courts[.]”People v Gillam, 479 Mich 253, 261 (2007).


http://publicdocs.courts.mi.gov:81/opinions/final/coa/20121025_c305276_39_305276.opn.pdf

http://www.law.cornell.edu/uscode/uscode18/usc_sec_18_00003565----000-.html




C. Conduct That Occurs After Expiration of Probationary Sentence

“[T]he decision to revoke [probation under MCL 771.4 must] bebased on violations which occur during the probationary period.”People v Ritter, 186 Mich App 701, 708 (1991).35

However, “a defendant’s period of probation is tolled when he [orshe] absconds from probationary supervision.” Ritter, 186 Mich Appat 710-712 (holding that the defendant’s period of probation wastolled from the issuance, during the original probationary period, ofa bench warrant for his arrest, until he was returned to the state andarrested). In such a case, the court may amend a probation violationpetition after the original probationary period has expired in orderto allege violations that occurred during the time in which theperiod of probation is tolled, and due process does not require thatthe defendant be served with notice of the probation revocationproceedings within the original period of probation. Id. at 709 n 3,711-712. Moreover, such an amended petition is timely if it is filedduring the time in which the period of probation is tolled. Id. at 712.

D. Amendment of Probation Order

The sentencing court may amend an order of probation at any timebefore the expiration of the statutory maximum probation periodset out in MCL 771.2 (five years for most felonies and two years formost non-felonies),36 even after the expiration of the original term ofprobation. See MCL 771.2(2); People v Marks, 340 Mich 495, 498-502(1954) (court had discretion to extend the defendant’s originalprobationary period for an additional two years and to add arestitution requirement, “even though the conditions of the originalorder had not been violated and its term had expired[,]” where thealteration was made before expiration of the statutory five-yearmaximum probation period).

However, “an ex parte order amending probation which orders aconditionally free defendant to be confined is in violation of the dueprocess clause of the Michigan Constitution.” People v Jackson (John),168 Mich App 280, 284 (1988). Before making such an amendment,the court must give the probationer notice of the reason for theproposed amendment and conduct an impartial hearing. Id. at 284-285. See also People v Britt, 202 Mich App 714, 717 (1993) (becauseplacement of the probationer in an electronic tethering program did

35 See Section 7.5(A) for discussion of jurisdictional time requirements for commencing probationrevocation proceedings.36 See MCL 771.2a for exceptions to these time periods.







not constitute confinement, the court properly entered an ex parteorder amending the probation order to require the probationer tocomply with the tethering program).

7.5 Time Requirements and Due Diligence37

A. Jurisdictional Time Requirements for Commencing Revocation Proceedings

Because the sentencing court loses jurisdiction over the probationerwhen the probation period ends, proceedings for revocation ofprobation “must occur, or must at least have been commenced,during the probation period.” People v Glass, 288 Mich App 399, 403,408 (2010). The sentencing court retains jurisdiction to revoke theprobationer’s probation if revocation proceedings are commencedwithin the probation period and are pending when the probationperiod expires. People v Hodges, 231 Mich 656, 660-661 (1925); Peoplev Ritter, 186 Mich App 701, 706, 710 (1991).38

A probation revocation proceeding is timely “commenced” forpurposes of this jurisdictional rule when “both the probationviolation and the filing of the petition . . . occur during theprobation period.” Ritter, 186 Mich App at 708 n 2, citing Hodges, 231Mich 656. In Hodges, 231 Mich at 657, 660-661, “the filing of [the]petition [to revoke probation] within the period of probation gavethe [sentencing] court jurisdiction” to revoke the defendant’sprobation, even though, due to a “reasonable delay[,]” therevocation hearing was not held until after expiration of theprobation period. In Ritter, 186 Mich App at 707-708, 708 n 2, theCourt of Appeals opined that, notwithstanding the “traditionalrule” of Hodges, 231 Mich 656, MCL 771.4, coupled with MCR

37 A swift and sure probation supervision program that is funded under the Probation Swift and SureSanctions Act, MCL 771A.1 et seq., is subject to stricter requirements for the apprehension and sanctioningof probation violators. For example, an offender participating in such a program must be “closelymonitored” and must be “arrested as soon as a violation has been detected[,]” MCL 771A.3(b)-(c), andmust be brought before a judge “as soon as possible but within 72 hours after the violation is reported tothe court” unless good cause is shown for the delay, MCL 771A.5(1)(c). See Section 7.17 for discussion ofthe Probation Swift and Sure Sanctions Act.38 In contrast, the sentencing court may amend an order of probation at any time before the expiration ofthe statutory maximum probation period set out in MCL 771.2(1) (five years for a felony and two years fora non-felony), even after the expiration of the original term of probation. See MCL 771.2(2); People vMarks, 340 Mich 495, 498-502 (1954) (court had discretion to extend the defendant’s original probationaryperiod for an additional two years and to add a restitution requirement, “even though the conditions of theoriginal order had not been violated and its term had expired[,]” where the alteration was made beforeexpiration of the statutory five-year maximum probation period); Glass, 288 Mich App at 401-404 (holdingthat the rule of Marks, 340 Mich 495, concerning alteration of a probation order, was inapplicable toprobation revocation, which “must occur, or must at least have been commenced, during the probationperiod[]”).










6.445(A), “require only that during the probation period the court findthat probable cause exists to believe that the defendant has violated his[or her] probation in order to justify issuance of a petition to revokeprobation and a warrant for the defendant’s arrest.” (Emphasissupplied). Therefore, the Ritter Court noted that “a better rule mightbe to require that the petition to revoke be filed within a reasonabletime after the violation is committed, even if the period of probationhas expired.” Ritter, 186 Mich App at 709 n 2.

Other cases suggest that an arrest warrant and/or notice ofprobation violation, if timely issued, may suffice to commence aprobation proceeding. See Glass, 288 Mich App at 408-409 (where awarrant for the defendant’s arrest was neither signed nor filed untilseveral months after the expiration of the probationary period, thecourt lacked jurisdiction to revoke probation); People v Wakefield, 46Mich App 97, 98-100 (1973) (where a notice of probation violationand warrant were filed three days after expiration of the defendant’sprobationary period, the court lacked jurisdiction to revokeprobation).

There is no requirement that an arrest warrant be executed or thatthe defendant otherwise receive notice of the revocationproceedings before the probationary period expires in order for thecourt to retain jurisdiction to revoke probation. Ritter, 186 Mich Appat 709, 709 n 3.

B. Requirement That Authorities Exercise Due Diligence in Pursuing Probation Violation Proceedings

Due process requires that “due diligence” be exercised to provide adefendant with notice of an alleged probation violation within areasonable time following the violation. People v Miller (Buford), 77Mich App 381, 384-385 (1977). Similarly, due process requires that“once a warrant for probation violation has been issued, theprobation authorities must exercise due diligence in executing it.”People v Ortman, 209 Mich App 251, 254 (1995), citing People vDiamond (Diamond I), 59 Mich App 581, 587 (1975).

The “length of delay, reason for delay and prejudice to thedefendant[]” are relevant in determining whether due diligence hasbeen exercised. Miller (Buford), 77 Mich App at 384-385 (citing Peoplev Collins (Harold), 388 Mich 680 (1972), and holding that a three-and-one-half-month delay between the defendant’s commission of a newcriminal offense and issuance of a probation violation notice “wasnot only reasonable but to [the] defendant’s benefit[]” where therevocation proceeding was delayed until after the probable-causehearing for the new offense and where the defendant “was free onbond during the entire period[]”); see also Ortman, 209 Mich App at




254-256 (upholding the trial court’s finding that the authoritiesfailed to exercise due diligence where there was an unexplainedtwo-year delay between the issuance of a bench warrant and thedefendant’s arrest, despite that the defendant “had not changed hisname, moved, or otherwise attempted to evade the probationauthorities[]”).39

Failure on the part of the authorities to proceed with due diligencemay result in a waiver of the alleged probation violation. Ortman,209 Mich App at 254; People v Henry, 66 Mich App 394, 397-399(1976); Diamond I, 59 Mich App at 585-588. Moreover, “a lack ofprejudice, in and of itself, is [not] sufficient to defeat a defendant’sclaim that the probation violation must be waived where there is afinding that the authorities did not exercise due diligence.” Ortman,209 Mich App at 255-257 (holding that where “there [was] noshowing that [the] defendant was to blame” for the two-year delaybetween the issuance of a bench warrant and his arrest, and wherethe delay did not benefit him, the alleged probation violation waswaived). See also Phillips, 109 Mich App at 540-541 (delay of 108days between the defendant’s nolo contendere plea to a new offenseand the date of arraignment for the related probation violation didnot constitute a lack of due diligence where the “probationauthorities were waiting to see how [the] defendant did on a drugrehabilitation program . . . before commencing probation violationproceedings[,]” and where this delay therefore benefited thedefendant).

However, see Regains, 477 Mich at 1038, 1038 n 1, 1039 (concurringstatement of Corrigan, J.) (citing People v New, 427 Mich 482, 491(1986), and opining that, “assum[ing] . . . that the [due diligence]rule is valid[,]” the defendant’s unconditional guilty plea to aprobation violation “waive[d] any issue that law enforcement didnot exercise due diligence in executing the probation violationwarrant[]”).

7.6 Notice of Alleged Violation and of Right to HearingA probationer has a due process right to written notice of chargedviolations. Gagnon v Scarpelli, 411 US 778, 782, 786 (1973); People v Miller(Buford), 77 Mich App 381, 384-385 (1977). To this end, MCL 771.4provides that “the probationer is entitled to a written copy of the chargesconstituting the claim that he or she violated probation[.]” MCL 771.4

39 MCL 780.131, the statutory “180-day rule,” does not apply to probation revocation proceedings.Diamond I, 59 Mich App at 583-585. But see People v Phillips, 109 Mich App 535, 540 (1981) (addressingthe defendant’s argument that the delay between his nolo contendere plea and probation violationhearing violated the statute, and concluding that no violation occurred).






“places an affirmative obligation on the trial court . . . to provide theprobationer with a written copy of the charges constituting the probationviolation[.]” People v Hendrick, 472 Mich 555, 561-562 (2005). Similarly,MCR 6.445(B)(1) requires the court, at the arraignment, to “ensure thatthe probationer receives written notice of the alleged violation[.]”“Generally, proper written notice is a prerequisite to valid probationrevocation.” People v Hunter, 106 Mich App 821, 827 (1981), citing People vWood, 2 Mich App 342 (1966).

Additionally, a probationer facing probation revocation has a dueprocess right to a contested hearing, Gagnon, 411 US at 786, and tonotification of this right, People v Edwards, 125 Mich App 831, 833 (1983).MCL 771.4 provides that “the probationer is entitled . . . to a probationrevocation hearing[,]” and MCR 6.445(B)(2)(a) requires the court, atarraignment, to advise the probationer that he or she “has a right tocontest the charge at a hearing[.]”

A. Written Notice of Alleged Violation

1. Contents of Notice

“The purpose of the notice requirement is to provide adefendant a reasonable opportunity to dispute, with evidence,the claimed violation.” Hunter, 106 Mich App at 825. “Althougha notice of probation violation need not be as specific as anindictment or information, . . . it should allege facts sufficientto give written notice of the claimed violation which, if proved,would constitute a violation of the probation terms andconditions.” Id. at 826. “Thus, the allegations should indicatethe specific probation conditions violated, as well as the datesand events supporting the charges.” Id. at 825-827 (noticecharging the defendant with “being arrested” for two newcriminal offenses was inadequate because (1) the conditions ofthe defendant’s probation “did not prohibit him[] . . . frombeing arrested[,]” and (2) the notice did not include specificinformation regarding the dates and circumstances of the newcriminal offenses); see also People v Cammon, 61 Mich App 315,316-318 (1975) (where the probationer was sentenced to oneyear in a probation camp as a condition of probation, the noticestating that he was expelled from that camp was adequate).

Probation may be revoked only for violations charged in thenotice of probation violation. People v Hall, 138 Mich App 86, 93(1984). In addition, probation may not be revoked based onnon-criminal conduct that is not contemplated in the probationorder, People v Pippin, 316 Mich 191, 193-196 (1946) (althoughthe defendant “is presumed to know the conditions prescribedby law[, n]o such presumption attaches to such other






conditions as existed only in the mind of the judge,unexpressed to the defendant either orally or in the order forprobation, and no violation of these warrants revocation ofprobation[]”), or based on violations of conditions that werestated orally to the defendant during sentencing but were notincluded in the written probation order, People v George, 318Mich 329, 332 (1947); see also People v Hill (Donald), 69 MichApp 41, 42-45 (1976).

2. Timeliness of the Written Notice of Alleged Violation

MCR 6.445(B)(1) requires the court to “ensure that theprobationer receives written notice of the alleged violation[]”at the arraignment. However, when the arraignment andrevocation hearing are conducted on the same day, the issue ofthe timeliness of the notice arises. As a matter of proceduraldue process, “notice ‘must be given sufficiently in advance ofscheduled court proceedings so that reasonable opportunity toprepare will be afforded[.]’” People v Gulley, 66 Mich App 112,116 (1975), quoting In re Gault, 387 US 1, 33 (1967). Similarly,due process requires that “due diligence” be exercised toprovide a defendant with notice of an alleged probationviolation within a reasonable time following the violation.Miller (Buford), 77 Mich App at 384-385.

Although providing notice minutes prior to, or at, a revocationhearing has been held untimely, in other cases the timeliness ofnotice is a function of the existence of a viable defense and thecomplexity of issues to be addressed at the hearing. See Peoplev McNeil, 104 Mich App 24, 28-29 (1981). The following casesillustrate these rules:

Notice provided to the probationer at the revocationhearing itself is not sufficient. People v Lawrence, 90Mich App 73, 76-77 (1979).

Notice provided to the probationer 15 minutes beforethe revocation hearing is not sufficient. People vGillman, 71 Mich App 374, 377-378 (1976).

Notice provided to the probationer on the same dayas the revocation hearing is insufficient where thealleged conduct did not involve conviction of a newcrime, and where the charged violation cannot bedisputed without gathering witnesses and preparinga substantial defense. See People v Ojaniemi, 93 MichApp 200, 202-204 (1979); People v Radney, 81 Mich App303, 306-307 (1978); People v Bell, 67 Mich App 351,354-355 (1976); Gulley, 66 Mich App at 117.




Notice provided to the probationer one day beforethe revocation hearing is sufficient where the allegedviolation is the probationer’s conviction of a newcrime. People v Irving, 116 Mich App 147, 152-153(1982).

Notice provided to the probationer one day beforethe revocation hearing is sufficient where the allegedviolation involves simple factual issues, such asfailure to report to the probation officer. See People vHanson, 178 Mich App 507, 510-511 (1989) (opinion ofMaher, J.); People v Duncan, 154 Mich App 652, 654(1986); McNeil, 104 Mich App at 27-29; People vBroadnax, 98 Mich App 338, 340 (1980).

3. Waiver of the Right to Timely Notice by Pleading Guilty40

Panels of the Court of Appeals have split on the questionwhether the probationer waives a claim of insufficient noticeby pleading guilty to a probation violation. Compare Broadnax,98 Mich App at 340, and Bell, 67 Mich App at 354 (guilty pleawaives untimely notice), with Hanson, 178 Mich App at 509-510(opinion of Maher, J.), McNeil, 104 Mich App at 28, Ojaniemi, 93Mich App at 203-204, and Lawrence, 90 Mich App at 76-78 (noautomatic waiver based on guilty plea). This issue has not beenaddressed by any recent published decisions of the Court ofAppeals or by the Michigan Supreme Court; however, seePeople v Regains, 477 Mich 1038, 1038 (2007) (concurringstatement of Corrigan, J.) (noting that “[i]n People v New, 427Mich 482, 491 (1986), [the Michigan Supreme] Court held that adefendant who pleads guilty waives all claims except thosethat implicate the very authority of the state to bring thedefendant to trial[]” and suggesting that Hanson, 178 Mich Appat 509-510, was therefore “incorrectly decided[,]” and opiningthat the defendant’s unconditional plea of guilty of a probationviolation “waive[d] any issue that law enforcement did notexercise due diligence in executing the probation violationwarrant[]”). See also Duncan, 154 Mich App at 653-654 (notingthat former MCR 6.111(E), now MCR 6.445(F), “specificallyprovides that a defendant may plead guilty at his [or her]arraignment on a probation violation charge[,]” and holdingthat one day’s notice was sufficient where the factual issue wassimple and the defendant was represented by counsel when hepleaded guilty the day following his arraignment).

40 See Section 7.11 for discussion of guilty and nolo contendere pleas.





4. Harmless Error

“Generally, a trial court’s decision to revoke probation may bebased only on the conduct charged in the notice of probationviolation.” Hunter, 106 Mich App at 824, citing People v Givens,82 Mich App 336, 341 (1978); People v Elbert, 21 Mich App 677,681 (1970); see also People v Councell, 194 Mich App 192, 194(1992). However, a failure to provide proper notice does notnecessarily require reversal. See In re Cobos, 326 Mich 537, 540(1950) (reversal not required on the basis of insufficient noticewhere the charged violation was based on a new criminalconviction and the defendant was represented by counsel,received actual notice of the charged violation by other means,and indicated that he was ready to proceed); Hunter, 106 MichApp at 827 (reversal not required on the basis of insufficientnotice where the defendant had actual notice of the criminalcharges constituting the charged probation violations andpleaded guilty to those charges the same day as the revocationhearing, and where counsel indicated at the revocation hearingthat he and the defendant were prepared to proceed).

Similarly, where the sentencing court revokes probation on thebasis of conduct not specified in the notice, reversal is notnecessarily required. “[W]here the conduct charged in thenotice is clearly established and far outweighs the othergrounds for revocation stated by the judge, the statement ofthe other grounds for revocation of probation is not an errorresulting in a denial of due process.” Hunter, 106 Mich App at824, citing People v McDonald, 97 Mich App 425, 429 (1980),vacated on other grounds 411 Mich 870 (1981).

B. Notice of Right to Contested Hearing

A probationer facing probation revocation is entitled to a hearing.MCL 771.4; Gagnon, 411 US at 786. At the arraignment, the courtmust advise the probationer of his or her “right to contest the chargeat a hearing[.]” MCR 6.445(B)(2)(a).

Due process “require[s] the trial court, at the very least, tospecifically inform [the] defendant that, as an alternative topleading guilty, he [or she] has the right to a hearing in which he [orshe] will have an opportunity to contest the charges against him [orher].” Edwards, 125 Mich App at 833, citing People v Adams, 411 Mich1070 (1981); People v Ealey, 411 Mich 987 (1981). “Failure to so informthe defendant requires reversal absent direct and affirmative proofthat the defendant was aware that he had such a right and that itwould be waived by a plea of guilty.” Edwards, 125 Mich App at 833,citing People v Moore, 121 Mich App 452 (1982); see also Ealey, 411





Mich at 987 (remanding for a new probation violation hearingwhere “[the] record fail[ed] to show that the defendant was notifiedof his right to a contested hearing[]”).

The use of the terms “hearing” or “pending violation hearing” in anotice of violation or bench warrant does not alone sufficientlynotify the probationer of the right to a contested hearing; rather,there must be “direct and affirmative proof that [the] defendantread [such a] notice and understood it[.]” Edwards, 125 Mich App at834-835; see also People v Stallworth, 107 Mich App 754, 755 (1981)(holding that although “statements in the notice of probationviolation or in the bench warrant referring to a ‘pending violationhearing’ may provide sufficient notice of the right to a contestedhearing[,] . . . [where] the record is void of the minimal evidencethat these documents were ever served upon [the] defendant orotherwise brought to [his or] her attention[ or thatthe] . . . defendant was in some manner made aware of the right to acontested hearing,” reversal is required). Similarly, the trial court’suse of the word “hearing” when informing the probationer of theright to counsel is insufficient notice of the right to a contestedhearing. Moore, 121 Mich App at 458-460; People v Gaudett, 77 MichApp 496, 499-502 (1977) (noting that “the [notice of hearing]requirement is satisfied if a defendant is told that he [or she] has theright to a hearing at which he [or she] may contest the accuracy ofthe violation charges[]”).41

7.7 Judges Who May Preside Over Revocation ProceedingsMCL 771.4 states, in relevant part:

If during the probation period the sentencing court determinesthat the probationer is likely again to engage in an offensiveor criminal course of conduct or that the public good requiresrevocation of probation, the court may revoke probation. Allprobation orders are revocable in any manner the court thatimposed probation considers applicable either for a violation or

41 The Court of Appeals has suggested that notice of the right to a hearing, like notice of the probationviolation, must be given at some point sufficiently in advance of a revocation hearing or guilty plea.Duncan, 154 Mich App at 653-654 (holding that one day’s notice of the right to a contested hearing wassufficient where the defendant was represented by counsel and where the case presented only a “simplefactual issue”). However, it appears that the Duncan panel may have inadvertently conflated the right tonotice of the probation violation and notice of the right to a hearing; all of the cases cited by the DuncanCourt concern whether notice of the probation violation was given sufficiently in advance of a scheduledrevocation hearing. See Duncan, 154 Mich App at 653-654, citing McNeil, 104 Mich App at 28-29;Broadnax, 98 Mich App 338; Ojaniemi, 93 Mich App 200; Lawrence, 90 Mich App 73; Bell, 67 Mich App351; Gulley, 66 Mich App 112. See Section 7.6(A)(2) for discussion of these cases.




attempted violation of a probation condition or for any othertype of antisocial conduct or action on the probationer’s partfor which the court determines that revocation is proper inthe public interest. [Emphasis added.]

The emphasized language in MCL 771.4 requires probation revocationproceedings to be conducted by the same judge who presided over thedefendant’s original sentencing, or by his or her successor if the originaljudge is unavailable. See People v Manser, 172 Mich App 485, 487 (1988)(citing MCR 2.613(B), which provides that a judgment or order may beset aside or vacated “only by the judge who entered the judgment ororder, unless that judge is absent or unable to act[]”); People v McIntosh,124 Mich App 705, 708-710 (1983) (citing former GCR 1963, 529.2 (nowMCR 2.613(B)), and concluding that “probation violation proceedingsshould be held, if possible, before the original judge[]”); People v Clemons(Alvin), 116 Mich App 601, 603-605 (1981) (citing former GCR 1963, 529.2(now MCR 2.613(B)), and noting that “revocation [should] be consideredby the judge who is most acquainted with the matter[]”).42

These principles are consistent with the generally applicable rule that thesame judge who conducted the original proceedings should conduct thesentencing, if he or she is reasonably available. See, e.g., People v Clemons(Kenneth), 407 Mich 939 (1979) (sentencing following trial); People vRobinson, 203 Mich App 196, 197 (1993) (sentencing following plea). Ajudge is properly considered to be “unavailable” if he or she is no longerassigned to the same court. See People v Van Auker (After Remand), 132Mich App 394, 399 (1984), rev’d in part on other grounds 419 Mich 918(1984). See also MCR 6.440(C)43 (“[i]f, after a verdict is returned orfindings of fact and conclusions of law are filed, the trial judge because ofdisability becomes unable to perform the remaining duties the courtmust perform, another judge regularly sitting in or assigned to the courtmay perform those duties[]”). See also MCR 2.630, which containssubstantially similar language.

If, however, the defendant fails to object, any error in having a differentjudge preside over probation revocation proceedings may be deemedharmless. See People v Williamson, 413 Mich 895, 895 (1982); McIntosh, 124Mich App at 709-710; see also Robinson, 203 Mich App at 197-198 (adefendant generally waives any claim of error by failing to object to beingsentenced by a different judge).

Although under Gagnon v Scarpelli, 411 US 778, 786 (1973), a probationeris entitled to “‘a “neutral and detached” hearing body’” as a matter of

42 But see People v Collins (Malcolm), 25 Mich App 609, 612 (1970) (holding that “the term ‘sentencingcourt’ [in MCL 771.4] means the forum . . . in which [the] defendant was sentenced to probation; the termcourt is not a reference to any specific judge[]”).43 MCR 6.440 is only applicable to felony cases. See MCR 6.001(A)-(B).


http://courts.mi.gov/Courts/MichiganSupremeCourt/CurrentCourtRules/1Chapter2CivilProcedure.pdf










due process, a judge is not precluded from conducting revocationproceedings merely because he or she placed the defendant on probation.People v Nesbitt, 86 Mich App 128, 139 (1978). “The ‘neutral and detachedhearing body’ requirement is aimed at preventing revocation by one whowas directly involved in bringing the charges against the defendant, suchas a probation officer, or one who has personal knowledge of an eventupon which the charge is based, such as a judge who orders revocationbecause of a failure to appear before him [or her].” Id. at 139.

A probationer is not entitled to a jury trial in a probation revocationproceeding. United States v Knights, 534 US 112, 120 (2001); People vHarper, 479 Mich 599, 627 (2007).

7.8 Procedures for Handling Cases Under the Interstate Compact for Adult Offender SupervisionThe Interstate Commission for Adult Offender Supervision, MCL 3.1012,provides uniformity in the transfer of adult offenders from one state toanother. All compacting states must comply with the substantive rulesissued by the Interstate Commission for Adult Offender Supervision(ICAOS).

For information on the background of the ICAOS, procedures ininterstate cases, and liability and immunity considerations for courtpersonnel in interstate cases, see the ICAOS’s Bench Book for Judges &Court Personnel, available at http://www.interstatecompact.org/Portals/0/library/publications/benchbook.pdf. For additional information on theICAOS, including training opportunities, best practices, advisoryopinions, and interstate forms, see http://www.interstatecompact.org/.

Part B—Probation Revocation Procedure

7.9 Issuance of Arrest Warrant or Summons to AppearMCR 6.445(A) provides, in relevant part:

On finding probable cause to believe that a probationer hasviolated a condition of probation, the court may

(1) issue a summons in accordance with MCR 6.103(B)and [MCR 6.103](C) for the probationer to appear forarraignment on the alleged violation, or

(2) issue a warrant for the arrest of the probationer.




http://www.interstatecompact.org/Portals/0/library/publications/benchbook.pdf

http://www.interstatecompact.org/Portals/0/library/publications/benchbook.pdf

http://www.interstatecompact.org/

http://www.interstatecompact.org/




A. Probable Cause Determination

The issuance of a summons to appear or a warrant for theprobationer’s arrest under MCR 6.445(A) is justified under MCL771.4 when, during the period of probation, the sentencing court44

“find[s] that probable cause exists to believe that the defendant hasviolated his [or her] probation[.]” People v Ritter, 186 Mich App 701,708 (1991).

The court must exercise its discretion when determining whetherprobable cause exists to believe that the probationer has violated acondition of probation. People v Farmer, 193 Mich App 400, 403(1992). However, “‘the decision whether to proceed with aprobation revocation petition on the basis of subsequent criminalconduct, to charge a defendant with that subsequent criminalconduct, or both, lies within the discretion of the prosecutingattorney[, and t]he judiciary has no authority to invade theprosecuting attorney’s discretion in this matter beyond its normalroles of probable cause determinations and, at trial, determinationof guilt or innocence.’” Id. at 402, quoting People v Williams (Willie),186 Mich App 606, 613 (1990). Accordingly, the trial court mayneither require the prosecutor to file separate criminal chargesbased on subsequent criminal conduct, Farmer, 193 Mich App at402-403, nor require the prosecutor to agree not to file separatecriminal charges based on that conduct, Williams (Willie), 186 MichApp at 607-609, 613-614, as a condition of proceeding on theprosecutor’s probation revocation petition.

B. Summons Requirements

MCR 6.103(B)-(C) govern the form and service requirements ofsummonses. These rules state as follows:

(B) Form. A summons must contain the sameinformation as an arrest warrant, except that it shouldsummon the accused to appear before a designatedcourt at a stated time and place.

(C) Service and Return of Summons. A summons maybe served by

(1) delivering a copy to the named individual; or

44 See Section 7.7 for discussion of when a judge other than the original sentencing judge may preside overprobation revocation proceedings.







(2) leaving a copy with a person of suitable age anddiscretion at the individual’s home or usual placeof abode; or

(3) mailing a copy to the individual’s last knownaddress.

Service should be made promptly to give the accusedadequate notice of the appearance date. The personserving the summons must make a return to the courtbefore which the person is summoned to appear.

MCR 6.445(A)(1) does not require that the summons be issued inaccordance with MCR 6.103(A), which states that “[i]f theprosecutor so requests, the court may issue a summons instead ofan arrest warrant.” Therefore, the court may issue a summons forany probation violation without a request by the prosecutor. See1989 Staff Comment to MCR 6.445.

C. Due Diligence Requirement for Executing Arrest Warrant45

Due process requires that “once a warrant for probation violationhas been issued, the probation authorities must exercise duediligence in executing it.” People v Ortman, 209 Mich App 251, 254(1995), citing People v Diamond (Diamond I), 59 Mich App 581, 587(1975).46 The “length of delay, reason for delay and prejudice to thedefendant[]” are relevant in determining whether due diligence hasbeen exercised. People v Miller (Buford), 77 Mich App 381, 384-385(1977). Failure on the part of the authorities to proceed with duediligence may result in a waiver of the alleged probation violation.Ortman, 209 Mich App at 254; Diamond I, 59 Mich App at 585-588.

Additionally, “[a]n arrested probationer must promptly be broughtbefore the court for arraignment on the alleged violation.” MCR6.445(A).47

45 See Section 7.5(B) for a more thorough discussion of procedural due diligence.46 MCL 780.131, the statutory “180-day rule,” does not apply to probation revocation proceedings.Diamond I, 59 Mich App at 583-585.47 A probationer who is participating in a program of swift and sure probation supervision under theProbation Swift and Sure Sanctions Act, MCL 771A.1 et seq., must be brought before a judge for aprobation violation “as soon as possible but within 72 hours after the violation is reported to the court”unless good cause is shown for the delay. MCL 771A.5(1)(c). See Section 7.17 for discussion of theProbation Swift and Sure Sanctions Act.











D. Arrest Without a Warrant

A peace officer may arrest a probationer without a warrant whenthe officer has probable cause to believe that the probationer hasviolated a probation condition. MCL 764.15(1)(g).

In People v Glenn-Powers, 296 Mich App 494, 501-503 (2012), theCourt of Appeals held that “the oath or affirmation requirementgenerally applicable to warrants does not apply to a warrant for thearrest of a probationer[,]” extending to probationers the rule ofTriplett v Deputy Warden, Jackson Prison, 142 Mich App 774, 782-783(1985), that the constitutional probable cause and oath oraffirmation requirements do not apply to a warrant for the arrest ofa parole violator. The Glenn-Powers Court, noting that under Griffinv Wisconsin, 483 US 868, 880 (1987), “the Fourth Amendment doesnot require a warrant to search a probationer’s home,” concludedthat “it is [therefore] not unreasonable to conclude that [the FourthAmendment] does not require a warrant to arrest a probationer.”Glenn-Powers, 296 Mich App at 503.48

7.10 Arraignment“An arrested probationer must promptly be brought before the court[49]

for arraignment on the alleged violation.” MCR 6.445(A).50

MCR 6.445(B), governing arraignment procedure, provides as follows:

At the arraignment on the alleged probation violation, thecourt must:

(1) ensure that the probationer receives written notice ofthe alleged violation,

(2) advise the probationer that

(a) the probationer has a right to contest the chargeat a hearing, and

(b) the probationer is entitled to a lawyer’sassistance at the hearing and at all subsequent

48 See Section 7.3 for additional discussion of probationers’ due process rights.49 See Section 7.7 for discussion of when a judge other than the original sentencing judge may preside overprobation revocation proceedings.50 A probationer who is participating in a program of swift and sure probation supervision under theProbation Swift and Sure Sanctions Act, MCL 771A.1 et seq., must be brought before a judge for aprobation violation “as soon as possible but within 72 hours after the violation is reported to the court”unless good cause is shown for the delay. MCL 771A.5(1)(c). See Section 7.17 for discussion of theProbation Swift and Sure Sanctions Act.








court proceedings, and that the court will appointa lawyer at public expense if the probationer wantsone and is financially unable to retain one,

(3) if requested and appropriate, appoint a lawyer,

(4) determine what form of release, if any, isappropriate, and

(5) subject to [MCR 6.445](C), set a reasonably prompthearing date or postpone the hearing.

A. Notice of Violation51

The trial court is required to provide the probationer with a writtencopy of the charges constituting the probation violation. MCL 771.4;People v Hendrick, 472 Mich 555, 561-562 (2005). At arraignment, thecourt must ensure that written notice has been provided. MCR6.445(B)(1). Additionally, “notice ‘must be given sufficiently inadvance of scheduled court proceedings so that reasonableopportunity to prepare will be afforded[.]’” People v Gulley, 66 MichApp 112, 116 (1975), quoting In re Gault, 387 US 1, 33 (1967). Thismay be an issue if revocation proceedings are to take place on thesame day as the arraignment.52

Because it is not clear that the notice requirement is waived by aguilty plea, see People v Regains, 477 Mich 1038, 1038 (2007)(concurring statement of Corrigan, J.); People v Hanson, 178 MichApp 507, 509-510 (1989) (opinion of Maher, J.); People v Broadnax, 98Mich App 338, 340 (1980), sufficient notice should be provided evenif a plea is to be entered.

“Generally, a trial court’s decision to revoke probation may be basedonly on the conduct charged in the notice of probation violation.”People v Hunter, 106 Mich App 821, 824 (1981); see also People vCouncell, 194 Mich App 192, 194 (1992). The notice “need not be asspecific as an indictment or information,” but “the allegationsshould indicate the specific probation conditions violated, as well asthe dates and events supporting the charges.” Hunter, 106 Mich Appat 826.

51 See Section 7.6(A) for additional discussion of this notice requirement.52 See Section 7.6(A) for additional discussion of the timeliness of the notice.







B. Notice of the Right to a Contested Hearing53

A probationer facing probation revocation has a due process right toa contested hearing. Gagnon, 411 US at 786; see MCL 771.4. At thearraignment, the court must advise the probationer of his or her“right to contest the charge at a hearing[.]” MCR 6.445(B)(2)(a). Thecourt’s failure to “specifically inform [the] defendant that, as analternative to pleading guilty, he [or she] has the right to a hearing inwhich he [or she] will have an opportunity to contest the chargesagainst him [or her][]” may require reversal. People v Edwards, 125Mich App 831, 833 (1983), citing People v Adams, 411 Mich 1070(1981); People v Ealey, 411 Mich 987 (1981).

C. Right to Counsel54

At arraignment, the court must instruct the defendant that he or sheis entitled to be represented by counsel, either appointed orretained, at the contested hearing and at all subsequent courtproceedings. MCR 6.445(B)(2)(b); see also People v Belanger, 227 MichApp 637, 645 (1998).

If the defendant wishes to retain counsel, a reasonable opportunitymust be afforded to do so. Gulley, 66 Mich App at 117 (allowing aprobationer only one day to obtain counsel does not afford a“‘reasonable opportunity’”).55

The court should appoint a lawyer for the defendant at thearraignment “if requested and appropriate[.]” MCR 6.445(B)(3).

D. Release and Scheduling the Violation Hearing

MCR 6.445(B)(4)-(5) require the court to determine if release of theprobationer is appropriate and to either set a reasonably prompthearing date or, if the probationer is being prosecuted for a criminaloffense, postpone the violation hearing as provided in MCR6.445(C).

In turn, MCR 6.445(C) provides:

The hearing of a probationer being held in custody foran alleged probation violation must be held within 14days after the arraignment or the court must order theprobationer released from that custody pending the

53 See Section 7.6(B) for additional discussion of this notice requirement.54 See Section 7.3(C) for a thorough discussion of the right to counsel in probation revocation proceedings.55 See Section 7.3(C)(3) for discussion of waiver of counsel.











hearing. If the alleged violation is based on a criminaloffense that is a basis for a separate criminalprosecution, the court may postpone the hearing for theoutcome of that prosecution.

1. Probationer in Custody

MCL 771.4 provides, in relevant part:

In its probation order or by general rule, the courtmay provide for the apprehension, detention, andconfinement of a probationer accused of violatinga probation condition or conduct inconsistent withthe public good.

If the probationer is held in custody on an alleged probationviolation, a violation hearing must be held within 14 days ofthe arraignment; otherwise, the probationer must be released.MCR 6.445(C).56

2. Postponement of Hearing When Violation Is Based on a Criminal Offense

The court may, but is not required to, postpone the violationhearing pending the outcome of a separate criminalprosecution for the offense that constitutes the allegedprobation violation. MCR 6.445(C); see also People v Williams(Willie), 186 Mich App 606, 612-613 (1990) (construing formerMCR 6.111(D)(2), which contains substantially similarlanguage as MCR 6.445(C)).57

E. Plea

“The probationer may, at the arraignment or afterward, plead guiltyto the violation.” MCR 6.445(F). A probationer may also enter, andthe court may accept, a plea of nolo contendere to a probationviolation charge. People v Kreigh, 165 Mich App 697, 699 (1988)(construing former MCR 6.111(E), which contains substantiallysimilar language as MCR 6.445(C)). See Section 7.11 for discussionof the required procedures for entering a plea.

56 See Section 7.3(B)(3) for discussion of due process concerns that may arise from a delay in conductingthe revocation hearing.57 See Section 7.4(A)(1) for a thorough discussion of probation revocation proceedings based on criminalconduct, including evidentiary issues associated with conducting revocation proceedings before or after arelated criminal prosecution.











7.11 Guilty or Nolo Contendere PleaMCR 6.445(F) provides:

The probationer may, at the arraignment or afterward, pleadguilty to the violation. Before accepting a guilty plea, thecourt, speaking directly to the probationer and receiving theprobationer’s response, must

(1) advise the probationer that by pleading guilty theprobationer is giving up the right to a contested hearingand, if the probationer is proceeding without legalrepresentation, the right to a lawyer’s assistance as setforth in [MCR 6.445](B)(2)(b),[58]

(2) advise the probationer of the maximum possible jailor prison sentence for the offense,

(3) ascertain that the plea is understandingly,voluntarily, and accurately made, and

(4) establish factual support for a finding that theprobationer is guilty of the alleged violation.

Although not directly contemplated in the court rule, a probationer mayalso enter, and the court may accept, a plea of nolo contendere to aprobation violation charge. People v Kreigh, 165 Mich App 697, 699 (1988)(construing former MCR 6.111(E), which contains substantially similarlanguage as MCR 6.445(C)).

A. Advice of Rights and Understanding, Voluntary, and Knowing Waiver of Rights

The requirements of MCR 6.445(F) “must be met even when thedefendant seeks to plead guilty to less than all of the counts pendingagainst him [or her]. While not every deviation from the rulerequires reversal, a record sufficient to show that the plea wasunderstanding, voluntary, and knowing must be made.” People vIson, 132 Mich App 61, 68-69 (1984) (construing former GCR 1963,791.5, which contains substantially similar language as MCR6.445(F)).

58See Section 7.3(C) for discussion of the right to counsel and waiver of counsel in probation revocationproceedings.










1. Advice of Right to Contested Hearing59

Before accepting a guilty plea, the court must advise theprobationer that by pleading guilty he or she gives up the rightto a contested revocation hearing. MCR 6.445(F)(1). The court’sfailure to “specifically inform [the] defendant that, as analternative to pleading guilty, he [or she] has the right to ahearing in which he [or she] will have an opportunity tocontest the charges against him [or her][]” may requirereversal. People v Edwards, 125 Mich App 831, 833 (1983)(construing former GCR 1963, 791.5, which containssubstantially similar language as MCR 6.445(F)), citing People vAdams, 411 Mich 1070 (1981); People v Ealey, 411 Mich 987(1981). Notice of the right to a contested hearing as analternative to pleading guilty is “especially important” whenthe probationer has waived the right to counsel. People v Alame,129 Mich App 686, 690 (1983) (construing former GCR 1963,791.5, which contains substantially similar language as MCR6.445(F)).

Repeated advice of the right to a contested hearing is notrequired when the plea proceeding immediately follows anarraignment at which the probationer was fully advised of hisor her right to a contested probation revocation hearing andthe rights incident thereto. People v Terrell, 134 Mich App 19, 23(1984) (construing former GCR 1963, 791.5, which containssubstantially similar language as MCR 6.445(F)).

2. Advice and Waiver of Right to Counsel60

Before accepting a plea, the court must advise anunrepresented defendant that he or she “is entitled to alawyer’s assistance . . . and that the court will appoint a lawyerat public expense if the probationer wants one and isfinancially unable to retain one[.]” MCR 6.445(B)(2)(b); MCR6.445(F)(1).

“[D]ue process is satisfied in a probation revocationproceeding if a trial court advises a defendant of his [or her]right to counsel and the appointment of counsel, if he [or she]is indigent, and determines if there is a knowing andintelligent waiver of that right.” People v Belanger, 227 MichApp 637, 647 (1998). “‘Factors to be considered when decidingwhether [the] defendant ha[s] made a knowing waiver of his[or her] right to counsel are [the] defendant’s age, education,

59 See Section 7.5(B) for additional discussion of this notice requirement60 See Section 7.3(C) for a thorough discussion of the right to counsel in probation revocation proceedings.











prior criminal experience, mental state, financial condition,and the various factors, pressures or inducements which ledhim [or her] to admit the allegations against him [or her]without the assistance of counsel.’” Id. at 646, quoting People vKitley, 59 Mich App 71, 76 (1975).

3. Advice of Maximum Sentence

The court must advise the probationer of the maximumpossible jail or prison sentence for the offense for which theprobationer was placed on probation. MCR 6.445(F)(2). Thefailure to so advise the probationer may require reversal andremanding to allow the defendant to withdraw the plea. SeeAlame, 129 Mich App at 689-690 (construing former GCR 1963,791.5, which contains substantially similar language as MCR6.445(F)); People v Gorzen, 126 Mich App 464, 467 (1983)(construing former GCR 1963, 791.5, which containssubstantially similar language as MCR 6.445(F)).

4. A Plea Must Be Understanding, Voluntary, and Accurate

Before accepting the plea, the court must “ascertain that theplea is understandingly, voluntarily, and accurately made[.]”MCR 6.445(F)(3). Although the court rule does not “require[]rigid, unwavering, ceremonial incantation of its provisionsunder peril of mandatory reversal, . . .failure to follow the clearmandates of [MCR 6.445(F)] . . . cannot produce anunderstanding, knowing, or voluntary plea.” Alame, 129 MichApp at 689-690 (construing former GCR 1963, 791, whichcontains substantially similar language as MCR 6.445(F); underfacts of case, trial court failed to comply with any of therequirements set out in former GCR 1963, 791.5).

______________________________________________

Committee Tip:

Although not explicitly required underMCR 6.445(F), it is good practice tosummarize, on the record, any pleaagreement, and to obtain confirmationfrom the defendant and, if present, theprobation officer, the defendant’sattorney, and the prosecutingattorney.61

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When there is a bona fide doubt as to a defendant’s competencyto enter a guilty plea to a probation violation, the court shouldnot accept the plea without first rendering a finding ofcompetence. People v Whyte, 165 Mich App 409, 411-414 (1988);People v Martin, 61 Mich App 102, 108 (1975).62

B. Establishing Factual Support for the Plea

Before accepting the plea, the court must establish support for afinding that the probationer is guilty of the violation charged. MCR6.445(F)(4). See Alame, 129 Mich App at 690 (construing former GCR1963 791.5, which contains substantially similar language as MCR6.445(F)); holding that, although the court rule does not “require[]rigid, unwavering, ceremonial incantation of its provisions underperil of mandatory reversal,” the defendant was entitled towithdraw his plea where the sentencing court “did not make anyfinding at all but simply accepted [the] defendant’s plea withouteven stating the charges on the record[]”); Ison, 132 Mich App at 68-69 (construing former GCR 1963 791.5, which contains substantiallysimilar language as MCR 6.445(F)); defense counsel’s statement thatthe defendant did not contest one of the charged probationviolations could not support the revocation of probation where “noother evidence relevant to this count was introduced[]”).

However, the vacation of a defendant’s plea of guilty of a probationviolation is not necessarily required where the trial court does notcomply with MCR 6.445(F)(4). In People v Hall, 138 Mich App 86, 89-92 (1984) (construing former GCR 1963 791.5, which containssubstantially similar language as MCR 6.445(F)), the Court ofAppeals held that a sufficient factual basis for finding theprobationer guilty of the charged violation was established, despitethe sentencing court’s failure to “explicitly make a ‘finding’ that[the] defendant was guilty of the charged offense[]”:

[A]s noted in both Alame[, 129 Mich App 686,] and Ison,[132 Mich App 61,] not every deviation from the [court]rule requires reversal, provided that a record sufficientto show that the plea was understanding, voluntary, andknowing has been made. . . . [S]uch a record wasmade . . . [where t]he court stated the charge against

61 For example, placing the terms of a plea agreement on the record may forestall a subsequent claim,under Lafler v Cooper, 566 US ___ (2012), and Missouri v Frye, 566 US ___ (2012), that a defendant was notadvised of a potential plea or that his or her counsel gave erroneous advice concerning a plea. See theMichigan Judicial Institute’s Michigan Circuit Court Benchbook: Criminal Proceedings, Chapter 4, for acomprehensive discussion of plea agreements.62 See the Michigan Judicial Institute’s Criminal Procedure Monograph 6: Pretrial Motions for a discussionof competency.


http://courts.mi.gov/education/mji/Publications/Documents/Mono-6-Pretrial-Motions.pdf

http://courts.mi.gov/education/mji/Publications/Documents/Circuit-Court-Criminal.pdf









[the] defendant on the record and twice ascertained that[the] defendant understood the charge. The charge itselfwas clear-cut and precise—failure to report to [the]defendant’s probation officer . . . . [The d]efendant’sadmission of guilt to the stated charge was sufficient toestablish a basis for finding that [the] defendant wasguilty.

Additionally, if the appellate court determines that the trial courtfailed to comply with MCR 6.445(F)(4), a remand may beappropriate to allow the prosecution to establish a factual basis for aplea. See People v McCullough, 462 Mich 857, 857 (2000):

The trial court did not secure an adequate factual basisto support acceptance of the guilty plea. See MCR6.445(F)(4). On remand, the trial court is to provide theprosecutor an opportunity to establish a factual basis tosupport the plea. See People v Mitchell, 431 Mich 744, 750(1988). If the prosecutor establishes a factual basis andno contrary evidence exists, [the] defendant’s convictionis to stand. If the prosecutor is unable to establish that[the] defendant violated a condition of probation, thetrial court is to vacate the order revoking [the]defendant’s probation. If contrary evidence is produced,the trial court is to treat the matter as a motion towithdraw the plea, and decide the matter in the exerciseof its discretion.

C. Withdrawal of Guilty Plea

A probationer may move to withdraw a plea of guilty of a probationviolation, and failure to do so may result in waiver of issuesregarding the court’s compliance with MCR 6.445(F). People v Baugh,127 Mich App 245, 246-247 (1983) (construing former GCR 1963791.5, which contains substantially similar language as MCR6.445(F)).

7.12 Violation Hearing63

Probation revocation proceedings consist of two “analytically distinctcomponents[]”: 1) a factual determination that the violation charged inthe notice has occurred (the violation hearing), and 2) a discretionarydetermination that the proven charge warrants revoking probation(sentencing). People v Clements, 72 Mich App 500, 503 (1976), citing

63 See Section 7.11 for discussion of entry of a guilty or nolo contendere plea to a charge of probationviolation.









Gagnon v Scarpelli, 411 US 778, 784 (1973); see also MCR 6.445(E); MCR6.445(G).

MCL 771.4 provides the general requirements for probation revocationhearings:

Hearings on the revocation shall be summary and informaland not subject to the rules of evidence or of pleadingsapplicable in criminal trials. . . . The method of hearing andpresentation of charges are within the court’s discretion,except that the probationer is entitled to a written copy of thecharges constituting the claim that he or she violatedprobation and to a probation revocation hearing.

MCR 6.445(E) sets out the required procedures for probation revocationhearings:

(1) Conduct of the Hearing. The evidence against theprobationer must be disclosed to the probationer. Theprobationer has the right to be present at the hearing, topresent evidence, and to examine and cross-examinewitnesses. The court may consider only evidence that isrelevant to the violation alleged, but it need not apply therules of evidence except those pertaining to privileges. Thestate has the burden of proving a violation by apreponderance of the evidence.

(2) Judicial Findings. At the conclusion of the hearing, thecourt must make findings in accordance with MCR 6.403.

MCR 6.403 provides, in relevant part, that “[t]he court must find the factsspecially, state separately its conclusions of law, and direct entry of theappropriate judgment.” Additionally, “[t]he court must state its findingsand conclusions on the record or in a written opinion made a part of therecord.” Id.

A probationer is not entitled to the full range of due process rightsassociated with a criminal trial. Due process requires only an “informalhearing structured to assure that the finding of a . . . violation will bebased on verified facts and that the exercise of discretion will beinformed by an accurate knowledge of the [probationer’s] behavior.”Morrissey v Brewer, 408 US 471, 484, 489, 490 (1972); see also Gagnon, 411US at 781-782; People v Johnson (Eddie), 191 Mich App 222, 225-226(1991).64 A probationer is not entitled to a jury trial in a probationrevocation proceeding. Samson v California, 547 US 843, 849 (2006); United

64 See Section 7.3 for a thorough discussion of the due process requirements that are applicable inprobation revocation proceedings.










States v Knights, 534 US 112, 120 (2001); People v Harper, 479 Mich 599, 627(2007).65

A. Timing Requirements66

If the probationer is held in custody on an alleged probationviolation, a violation hearing must be held within 14 days of thearraignment; otherwise, the probationer must be released. MCR6.445(C).67

The court may, but is not required to, postpone the violation hearingpending the outcome of a separate criminal prosecution for theoffense that constitutes the alleged probation violation. MCR6.445(C).68

B. Continuing Duty to Advise of Right to Counsel

“Even [if] a probationer charged with probation violation haswaived the assistance of a lawyer, at each subsequent proceedingthe court must comply with the advice and waiver procedure inMCR 6.005(E).” MCR 6.445(D).69

C. Presentation of Evidence70

“Probation is a matter of grace, not of right,” and “when a judgeimposes probation, it is ‘revocable on the basis of a judge’s findingsof fact at an informal hearing, and largely at the judge’s discretion.’”People v Breeding, 284 Mich App 471, 479-480 (2009), quoting People vHarper, 479 Mich 599, 626 (2007).

“‘Probation violation hearings are summary and informal and arenot subject to the rules of evidence or of pleading applicable in acriminal trial. The scope of these proceedings is limited and the fullpanoply of constitutional rights applicable in a criminal trial do notattach.’” Breeding, 284 Mich App at 480, quoting People v Pillar, 233

65 See Section 7.7 for discussion of when a judge other than the original sentencing judge may preside overprobation revocation proceedings.66 See Section 7.10(D) for additional discussion of timing requirements for the violation hearing.67 See Section 7.3(B)(3) for discussion of due process concerns that may arise from a delay in conductingthe revocation hearing.68 See Section 7.4(A)(1) for a thorough discussion of probation revocation proceedings based on criminalconduct, including evidentiary issues associated with conducting revocation proceedings before or after arelated criminal prosecution. 69 See Section 7.3(C)(3) for discussion of waiver of counsel.70 See Section 7.3(D) for additional discussion of the due process concerns related to the presentation ofevidence at violation hearings.









Mich App 267, 269 (1998). Because a probation revocation hearing isnot a criminal prosecution, “the process should be flexible enoughto consider evidence including letters, affidavits, and other materialthat would not be admissible in an adversary criminal trial.”Morrissey, 408 US at 489; see also Gagnon, 411 US at 782 n 5 (“we didnot in Morrissey intend to prohibit use where appropriate of theconventional substitutes for live testimony, including affidavits,depositions, and documentary evidence[] . . . [or] to foreclose theStates . . . from developing other creative solutions to the practicaldifficulties of the Morrissey requirements[]”).

“The court may consider only evidence that is relevant to theviolation alleged, but it need not apply the rules of evidence exceptthose pertaining to privileges.” MCR 6.445(E)(1). “A trial court’sdiscretionary authority regarding the admission of evidence at aprobation revocation hearing is broad.” Breeding, 284 Mich App at479, citing MCR 6.445(E)(1); MRE 1101(b)(3).

“So long as there is no evidence of partiality or prejudice, it is notimproper for the court to conduct a probation revocationproceeding[]” and to interrogate witnesses. People v Rocha (AfterRemand), 99 Mich App 654, 656 (1980).71 However, “whereprobation proceedings are contested, it is preferable that theinterrogation of the defendant be conducted by the prosecutor, so asto avoid the potential or the appearance of bias.” Id. at 656.

1. Evidence Must Be Relevant to a Charged Violation

“[O]nly evidence relating to the charged probation violationactivity may be considered at a violation hearing and only suchevidence may provide the basis for a decision to revoke one’sprobation.” Pillar, 233 Mich App at 270; see also MCR6.445(E)(1).

“A defendant who, while on probation, is convicted of a crimein violation of his [or her] probation is not entitled to challenge,at his [or her] probation revocation hearing, the validity of theconviction which forms the basis for the charge of theprobation violation.” People v Irving, 116 Mich App 147, 150(1982).

71 Although Rocha (After Remand), 99 MIch App at 654, predates all probation revocation court rules,nothing in the current court rule, MCR 6.445, specifically prohibits a judge from interrogating a witnessduring a probation revocation proceeding. It should be noted, however, that MCR 6.445(E)(1) does require“[t]he state [to] prov[e] a violation by a preponderance of the evidence.”






http://courts.mi.gov/Courts/MichiganSupremeCourt/CurrentCourtRules/2MichiganRulesOfEvidence.pdf




2. Hearsay

The court may consider hearsay evidence at probationrevocation proceedings. See MCL 771.4; MCR 6.445(E)(1).However, care should be taken to ensure that the defendant’slimited due process right of confrontation is not abridged bythe admission of hearsay evidence. See Breeding, 284 Mich Appat 482, 487-489 (“declin[ing the] defendant’s invitation to adopta method for establishing the admissibility of hearsaytestimony in a probation revocation hearing[]” where thedefendant neither objected nor requested cross-examination,but holding that “a due process standard applies indetermining the admissibility of statements made by out-of-court declarants at probation violation proceedings, regardlessof whether the statements are testimonial or nontestimonial innature[]”).72

D. Probationer’s Rights Concerning the Presentation of Evidence

MCR 6.445(E)(1) contains the following rules governing theprobationer’s rights with respect to the presentation of evidence atprobation revocation hearings:

The evidence against the probationer must be disclosed tohim or her.

The probationer has the right to be present at the hearing.

The probationer has the right to present evidence.

The probationer has the right to examine and cross-examine witnesses.

Additionally, a probationer has the right to insist that any witnesswho testifies against him or her take an oath or affirm to tell thetruth. People v Knox, 115 Mich App 508, 514 (1982) (applying MCL600.1432 and MCL 600.1434 to probation revocation proceedings).

72 See Section 7.3(D) and Section 7.11(D)(1) for discussion of the probationer’s right of confrontation inprobation revocation proceedings.









1. Probationer’s Right to Confront and Cross-Examine Witnesses73

Because probation revocation is not a stage of a criminalproceeding, “the Sixth Amendment right to confrontation, asdefined and applied in Crawford[ v Washington, 541 US 36(2004)74], does not apply to probation revocation proceedings.”Breeding, 284 Mich App at 482. However, a probationer enjoys abasic due process right “‘to confront and cross-examineadverse witnesses (unless the hearing officer specifically findsgood cause for not allowing confrontation)[.]’” Gagnon, 411 USat 786, quoting Morrissey, 408 US at 489; see also Breeding, 284Mich App at 484-487 (declining to address the defendant’sclaim that he was denied the constitutional right ofconfrontation at his probation revocation hearing where hefailed to object to alleged hearsay testimony and did not makea request to cross-examine the adverse witnesses).”

2. Privilege Against Self-Incrimination

The Michigan Court of Appeals has held that the privilegeagainst self-incrimination contained in the federal andMichigan constitutions applies to probation revocationproceedings, and that a probationer cannot be compelled totestify against himself or herself at a revocation hearing. Peoplev Manser, 172 Mich App 485, 488 (1988).

“[E]vidence of a defendant’s failure to respond to an accusationof wrongdoing is inadmissible to prove guilt even if thedefendant had, prior to his [or her] silence, waived his [or her]right to remain silent.” People v Staley, 127 Mich App 38, 41-42(1983) (applying People v Bobo, 390 Mich 355 (1973), toprobation revocation proceedings).

Involuntary confessions are inadmissible in probationrevocation hearings. Staley, 127 Mich App at 43-44. However,voluntary statements made to a probation officer during anoncustodial interview are admissible in revocation orsubsequent criminal proceedings, even absent Mirandawarnings. Minnesota v Murphy, 465 US 420, 429-431 (1984);People v Hardenbrook, 68 Mich App 640, 644-646 (1976). See alsoFare v Michael C, 442 US 707, 725 (1979) (juvenile’s request to

73 See Section 7.3(D) for additional discussion of the probationer’s right of confrontation in probationrevocation proceedings.74 The Crawford Court held that out-of-court “testimonial” statements are inadmissible unless thedeclarant is shown to be unavailable and there has been “a prior opportunity for cross-examination.”Crawford, 541 US at 68.



speak with his probation officer did not constitute aninvocation of the juvenile’s rights to counsel and to remainsilent); People v Anderson (Robert), 209 Mich App 527, 530-535(1995) (juvenile corrections officer is not a law enforcementofficer for Miranda purposes).

If a probation revocation hearing is conducted prior to acriminal trial involving the same facts, the probationer’stestimony at the hearing and any evidence derived from it areinadmissible—except for purposes of impeachment orrebuttal—against the probationer at the subsequent criminaltrial, if a timely objection is made at that trial. People v Rocha, 86Mich App 497, 512-513 (1978). “[T]he probationer must beadvised before he [or she] takes the stand at the revocationhearing that his [or her] testimony and its fruits will not beadmissible against him [or her] at a subsequent criminal trialon the underlying offense.” Id. at 513.75

3. Admission of Evidence Seized in Violation of Fourth Amendment76

The United States Supreme Court has held that “the federalexclusionary rule does not bar the introduction at parolerevocation hearings of evidence seized in violation of parolees’Fourth Amendment rights.” Pennsylvania Bd of Probation &Parole v Scott, 524 US 357, 364 (1998); see also Gagnon, 411 US at782 n 3 (“[d]espite the undoubted minor differences betweenprobation and parole, . . . revocation of probation wheresentence has been imposed previously is constitutionallyindistinguishable from the revocation of parole[]”).

However, in Michigan, the exclusionary rule presumably mayapply, at least to some extent, to bar admission of illegallyseized evidence in probation revocation proceedings. People vPerry, 201 Mich App 347, 349, 349 n 1, 350-352 (1993) (leadopinion of Shepherd, J.) (rejecting the proposition, set out“‘parenthetically’” in Hardenbrook, 68 Mich App at 645, “thatthe exclusionary rule is inapplicable to probation revocationhearings[,]” but failing to garner a majority vote regarding the

75 But see People v Pacholka, 451 Mich 896, 896 (1996) (statement of Boyle, J.) (opining that the Court ofAppeals in Rocha, 86 Mich App 497, may have violated separation of powers principles when it declared “‘ajudicial rule of evidence[]’ that in fact constituted the assumption of judicial authority to grant useimmunity[]” for testimony at a probation violation hearing). See Section 7.4(A)(1) for a thorough discussionof probation revocation proceedings based on criminal conduct, including evidentiary issues associatedwith conducting revocation proceedings before or after a related criminal prosecution.76 See Section 7.3(E) for additional discussion of the applicability to probationers of the FourthAmendment’s prohibition against unreasonable searches and seizures.



appropriate test to apply to determine whether evidenceshould be excluded).

E. Establishing a Probation Violation77

1. Burden of Proof

“The state has the burden of proving a violation by apreponderance of the evidence.” MCR 6.445(E)(1).

The evidence is sufficient to sustain a finding if, “viewed in thelight most favorable to the prosecution, it would enable arational trier of fact to conclude that the essential elements ofthe charge were proven by a preponderance of the evidence.”People v Ison, 132 Mich App 61, 66 (1984) (construing GCR 1963,791.4, which contains substantially similar language as MCR6.445(E)(1)). Credibility of witnesses is a matter for the trier offact to ascertain. People v Sexton (After Remand), 461 Mich 746,752 (2000); People v Vaughn, 186 Mich App 376, 380 (1990).

If the alleged violation is a criminal offense, each element ofthat offense must be proven by a preponderance of theevidence. People v Tebedo, 107 Mich App 316, 320-321 (1981).“Because the standard of proof [in a probation revocationproceeding] is lower than the reasonable doubt standardemployed in a criminal trial, probation may be revoked beforethe trial on the substantive offense, and a decision to revokeprobation will be valid even if the defendant is ultimatelyacquitted of the substantive crime.” Id. at 321; see also People vBuckner, 103 Mich App 301, 303 (1980).78

2. Facts on Which Violation May Be Based

“A trial court must base its decision that a probation violationwas proven on verified facts in the record.” Breeding, 284 MichApp at 487, citing Pillar, 233 Mich App at 270.

a. Violation Must Be Based on Conditions Contained in Probation Order

Probation may not be revoked based on non-criminalconduct that is not contemplated in the probation order,

77 See Section 7.4 for discussion of conduct that constitutes a probation violation. See Section 7.11 fordiscussion of the entry of a guilty or nolo contendere plea.78 See Section 7.4(A)(1) for discussion of probation revocation proceedings based on criminal conduct,including evidentiary issues associated with conducting revocation proceedings before or after a relatedcriminal prosecution.






Pippin, 316 Mich at 193-196 (although the defendant “ispresumed to know the conditions prescribed by law[, n]osuch presumption attaches to such other conditions asexisted only in the mind of the judge, unexpressed to thedefendant either orally or in the order for probation, andno violation of these warrants revocation of probation[]”),or based on violations of conditions that were statedorally to the defendant during sentencing but were notincluded in the written probation order, People v George,318 Mich 329, 332 (1947); see also Pillar, 233 Mich App at270 (“[the] defendant’s unsupervised visitation with hisdaughter, which did not violate a term of probation andwhich was not charged as conduct in violation of a termof probation, was erroneously considered by the judge inher ultimate decision to revoke [the] defendant’sprobation[]”); People v Hill (Donald), 69 Mich App 41, 42-45 (1976) (court erroneously considered evidence of thedefendant’s nonpayment of child support in revoking hisprobation, where payment of support was not a conditionof the defendant’s probation).

The court may revoke probation if the defendant fails tocomply with a restitution order or order to pay costs, butonly if he or she has not made a good-faith effort tocomply with the orders. MCL 769.1a(11); MCL 771.3(8);MCL 780.766(11); MCL 780.826(11); see also Tate v Short,401 US 395, 397-400 (1971); People v Collins (Richard), 239Mich App 125, 135-136 (1999); People v Baker, 120 MichApp 89, 99 (1982).79

b. Conduct Must Be Charged in Notice of Violation80

Probation may be revoked only for violations charged inthe notice of probation violation. People v Hall, 138 MichApp 86, 92-93 (1984); see also People v Banks, 116 MichApp 446, 448, 451 (1982) (evidence of uncharged conduct,including the probationer’s “possible possession of pills,. . . general societal behavior, lack of constructiveactivity[,] and . . . unemployment[,]” was appropriatelyconsidered “for its bearing on [the] defendant’s

79 A sentence that exposes an indigent offender to incarceration unless he or she pays fines, costs, orrestitution violates the Equal Protection Clauses of the state and federal constitutions because it results inunequal punishments based on economic status. See Tate, 401 US at 397-400; Collins (Richard), 239 MichApp at 135-136. See Section 7.4(A)(2) for additional discussion of revocation of probation for failure to payrestitution, costs, or fees.80 See Section 7.6(A) for additional discussion of this notice requirement.







credibility[]” in his explanation for committing thecharged conduct); People v Longmier, 114 Mich App 351,352-354 (1982) (court’s reference to the defendant’s allegedheroin use, which was not charged in the notice ofviolation, demonstrated that the court “alloweduncharged conduct to taint its decision[]” to revokeprobation, requiring vacation of the revocation order).

c. Violative Conduct Must Occur During Probationary Period

“[T]he decision to revoke [probation under MCL 771.4must] be based on violations which occur during theprobationary period.” People v Ritter, 186 Mich App 701,708 (1991).81

F. Required Findings of Fact and Conclusions of Law

MCR 6.445(E)(2) provides that “[a]t the conclusion of the hearing,the court must make findings in accordance with MCR 6.403.”

MCR 6.403, in turn, provides, in relevant part:

The court must find the facts specially, state separatelyits conclusions of law, and direct entry of theappropriate judgment. The court must state its findingsand conclusions on the record or in a written opinionmade a part of the record.

7.13 Sentencing82

MCR 6.445(G) provides:

If the court finds that the probationer has violated acondition of probation, or if the probationer pleads guilty to aviolation, the court may continue probation, modify theconditions of probation, extend the probation period, orrevoke probation and impose a sentence of incarceration. The

81 See Section 7.5(A) for discussion of jurisdictional time requirements for commencing probationrevocation proceedings.82 A swift and sure probation supervision program that is funded under the Probation Swift and SureSanctions Act, MCL 771A.1 et seq., is required to “[p]rovide for the immediate imposition of sanctions andremedies approved by the state court administrative office to effectively address probation violations.”SCAO-approved sanctions and remedies may include temporary incarceration, extension of the period ofsupervision, additional reporting and compliance requirements, drug and alcohol testing, mental healthtreatment, and/or probation revocation. MCL 771A.5(1)(d)(i)-(vi). See Section 7.17 for discussion of theProbation Swift and Sure Sanctions Act.















court may not sentence the probationer to prison withouthaving considered a current presentence report and havingcomplied with the provisions set forth in MCR 6.425(B)[83]

and [MCR 6.425](E).[84]

“A trial court has broad latitude in deciding whether to revokeprobation.” People v Hendrick, 472 Mich 555, 563 (2005).

A. Time Requirements

“The court must sentence the defendant within a reasonablyprompt time after the plea or verdict unless the court delayssentencing as provided by law.” MCR 6.425(E)(1); see MCR6.445(G).

B. Presentation of Circumstances in Mitigation

Prior to imposing sentence for a probation violation, the trial courtmust “give the defendant, the defendant’s lawyer, the prosecutor,and the victim[85] an opportunity to advise the court of anycircumstances they believe the court should consider in imposingsentence[.]” MCR 6.425(E)(1)(c); see MCR 6.445(G).

Prior to imposition of sentence, a probationer has a due processright to present circumstances in mitigation suggesting that theviolation does not warrant revocation of probation and impositionof a sentence of imprisonment. People v Clements, 72 Mich App 500,504-506 (1976), citing Gagnon v Scarpelli, 411 US 778, 782 (1973) (alsociting former GCR 1963, 785.8(2), which contains substantiallysimilar language as MCR 6.425(E)(1)(c)). However, a court is notrequired to state explicitly why it has rejected alternatives toincarceration. Black v Romano, 471 US 606, 610-611 (1985).

C. Probation Revocation and Imposition of Sentence

MCL 771.4 provides, in relevant part:

If a probation order is revoked, the court may sentencethe probationer in the same manner and to the samepenalty as the court might have done if the probationorder had never been made.86

83 See Section 7.12(C)(2) for discussion of the presentence information report requirements set out in MCR6.425(B).84 See Section 7.12(C)(3) for discussion of the sentencing procedures set out in MCR 6.425(E).85 See Section 7.12(C)(4) for discussion of a victim’s rights at sentencing.















“A probation violation hearing[] . . . is not a criminal prosecution[,]. . . [and] a determination by a trial court that a probationer hasviolated the terms of the probation order does not burden theprobationer with a new conviction or expose the probationer topunishment other than that to which the probationer was alreadyexposed as a result of the previous conviction for which theprobationer was placed on probation.” People v Burks, 220 Mich App253, 256 (1996), citing People v Johnson (Eddie), 191 Mich App 222,226-227 (1991). If the court decides to revoke probation, it mustresentence the probationer for the original offense that led to his orher placement on probation. Johnson v United States, 529 US 694, 700-701 (2000); People v Kaczmarek, 464 Mich 478, 483 (2001).

1. Determining the Sentence87

a. Maximum Sentence

The maximum sentence for a probation violation must bethe same as the maximum sentence for the underlyingoffense. People v Maxson, 163 Mich App 467, 470-471(1987).

b. Sentencing Guidelines88

The legislative sentencing guidelines apply to adefendant’s sentence of imprisonment followingprobation revocation when the offense for which thedefendant was sentenced to probation was committed onor after January 1, 1999. MCL 769.34(2); Hendrick, 472Mich at 560. The trial court must articulate substantialand compelling reasons for imposing a sentence outsideof the guidelines range. Id. at 562-563.

MCL 771.4 “states that ‘if’ probation is revoked, the court‘may’ sentence the defendant as if probation had neverbeen granted[; thus, w]hile the sentencing court maysentence the probationer in the same manner and to thesame penalty, nothing in the statute requires it to do so.”

86 See also MCR 6.445(G), which provides, in relevant part, that “the court may . . . revoke probation andimpose a sentence of incarceration[]” (emphasis supplied). To the extent that MCR 6.445(G) suggests that asentence of incarceration must be imposed if probation is revoked, it is presumably inconsistent with MCL771.4. See Hendrick, 472 Mich at 561-562 (“[w]hile the sentencing court may sentence the probationer inthe same manner and to the same penalty [as if probation had never been granted], nothing in [MCL771.4] requires it to do so[]”). See Section 7.12(C)(1)(b).87 See Section 7.12(C)(2) for discussion of requirements concerning the presentence information report(PSIR).88 See the Michigan Judicial Institute’s Monograph 8: Felony Sentencing for information regarding thelegislative sentencing guidelines.












Hendrick, 472 Mich at 561-562. While the court maysentence the defendant to the same penalty that couldhave been imposed according to the guidelinesrecommendation as calculated for the sentencing offenseat the time of the defendant’s initial sentencing, it is also“perfectly acceptable to consider postprobation factors indetermining whether substantial and compelling reasonsexist to warrant an upward departure from the legislativesentencing guidelines.” Id. at 557, 562-563. Accordingly,“the acts giving rise to the probation violation mayprovide a substantial and compelling reason to depart.”People v Church, 475 Mich 865, 865 (2006), citing Hendrick,472 Mich at 564.

An individual’s probation violation alone—withoutregard to the specific conduct underlying the violation—”is objective and verifiable[]” and may constitute asubstantial and compelling reason to depart from thesentencing guidelines. People v Schaafsma, 267 Mich App184, 185-186 (2005).

c. Consecutive Sentences

Consecutive sentences may be imposed under MCL768.7b when a person commits a felony while anotherfelony charge is pending. However, once a defendant isplaced on probation, the prior felony charge is no longer“pending” for purposes of MCL 768.7b; therefore,consecutive sentences may not be imposed under MCL768.7b based on a defendant’s commission of a felonywhile on probation for a previous crime. People v Malone,177 Mich App 393, 401-402 (1989); see also People v Hardy,212 Mich App 318 (1995) (although consecutivesentencing not authorized under MCL 768.7b because thedefendant was on probation, it was authorized under adifferent statute).

d. Granting Credit for Time Served89

MCR 6.425(E)(1)(d) requires the court to give a defendantcredit for time served when imposing a sentence. Thereare several statutory provisions that mandate credit fortime served for all criminal defendants, including thefollowing:

89 See the Michigan Judicial Institute’s Monograph 8: Felony Sentencing for a thorough discussion ofsentence credit.




http://legislature.mi.gov/doc.aspx?mcl-768-7b







time spent in jail prior to sentencing because of“being denied or unable to furnish bond[,]” MCL769.11b;

time spent in a juvenile facility prior tosentencing “because of being denied or beingunable to furnish bond[,]” MCL 764.27a(5);

time spent in custody at a mental health facilityduring competency evaluations and treatment,MCL 330.2042; and

good-time or disciplinary credits earned whileserving a jail sentence as a condition ofprobation, MCL 800.33; see also People v Resler,210 Mich App 24, 28 (1995).

Sentence credit under MCL 769.11b is limited to jail timeserved for the offense of which the defendant isconvicted; a defendant is not entitled to credit under MCL769.11b for time served on unrelated charges committedwhile out on bond, People v Prieskorn, 424 Mich 327, 340(1985), for time “spent in residence in a private drugtreatment program as a condition of probation[,]” People vWhiteside, 437 Mich 188, 194-198, 202 (1991), or for timeserved on an unrelated offense before being sentenced forthe sentencing offense, People v Givans, 227 Mich App 113,125-126 (1997).

However, even if a sentence credit is not authorized bystatute, it may be required under the constitutionalprotection against double jeopardy. “‘[T]he constitutionalguarantee against multiple punishments for the sameoffense absolutely requires that punishment alreadyexacted must be fully “credited” in imposing sentenceupon a new conviction for the same offense.’” Whiteside,437 Mich 198-199, quoting North Carolina v Pearce, 395 US711, 718-719 (1969), overruled in part on other groundsAlabama v Smith, 490 US 794, 802-803 (1989). To avoidviolating the double jeopardy prohibitions of the stateand federal constitutions, Michigan appellate courts haveheld that a probationer is entitled to sentence credit fortime spent in the following facilities:

in jail for an initial period of incarceration as acondition of probation, People v Sturdivant, 412Mich 92, 96 (1981)











in a “Special Alternative Incarceration Unit”(“boot camp”), People v Hite (After Remand), 200Mich App 1, 2-8 (1993)

“The Double Jeopardy Clauses of the United States andMichigan Constitutions require that a probationer begiven credit for time served [only] while incarcerated as acondition of probation.” Hite (After Remand), 200 MichApp at 4, citing Sturdivant, 412 Mich at 96. Thus, credit onthe basis of the prohibition against double jeopardy is notrequired for “time not served because of an early releasefrom jail due to overcrowding[]” where that jail time wasordered as a condition of probation. People v Grazhidani,277 Mich App 592, 593, 597-601 (2008) (emphasissupplied). Additionally, neither MCL 769.11b nor theconstitutional prohibition against double jeopardyprevent a probationer from being denied credit for timespent in a “tether” program, People v Reynolds, 195 MichApp 182, 183-184 (1992), or for “participation in a privaterehabilitation program[,]” Whiteside, 437 Mich at 202.

e. Revocation of Probation Imposed for Uncounseled Conviction90

Where probation was imposed against a defendant whowas not represented by an attorney and who did notvalidly waive the right to counsel, the defendant may notbe incarcerated as a result of a violation of the probation.See MCR 6.610(F)(2); Alabama v Shelton, 535 US 654, 657-659, 662-663 (2002).

2. Presentence Information Report (“PSIR”)

a. Requirement of Current PSIR

MCR 6.445(G) provides, in part, that “[t]he court may notsentence the probationer to prison without havingconsidered a current presentence report and havingcomplied with the provisions set forth in MCR6.425(B)[.]”

MCR 6.425(B), in turn, provides:

The court must provide copies of thepresentence report to the prosecutor, and the

90 See Section 7.3(C)(4) for additional discussion of revocation of probation imposed for uncounseledconvictions.









defendant’s lawyer, or the defendant if notrepresented by a lawyer, at a reasonable time,but not less than two business days, beforethe day of sentencing. The prosecutor and thedefendant’s lawyer, or the defendant if notrepresented by a lawyer, may retain a copy ofthe report or an amended report. If thepresentence report is not made available tothe prosecutor and the defendant’s lawyer, orthe defendant if not represented by a lawyer,at least two business days before the day ofsentencing, the prosecutor and thedefendant’s lawyer, or the defendant if notrepresented by a lawyer, shall be entitled, onoral motion, to an adjournment of the day ofsentencing to enable the moving party toreview the presentence report and to prepareany necessary corrections, additions, ordeletions to present to the court. The courtmay exempt from disclosure information ordiagnostic opinion that might seriouslydisrupt a program of rehabilitation andsources of information that have beenobtained on a promise of confidentiality.When part of the report is not disclosed, thecourt must inform the parties thatinformation has not been disclosed and stateon the record the reasons for nondisclosure.To the extent it can do so without defeatingthe purpose of nondisclosure, the court alsomust provide the parties with a written ororal summary of the nondisclosedinformation and give them an opportunity tocomment on it. The court must have theinformation exempted from disclosurespecifically noted in the report. The court’sdecision to exempt part of the report fromdisclosure is subject to appellate review.

See also MCL 771.14.

A reasonably updated PSIR must be considered by thecourt when sentencing a probationer to prison. People vCrook, 123 Mich App 500, 503 (1983) (citing People vTriplett, 407 Mich 510 (1980), and holding that a five-month-old PSIR was not reasonably updated whereseveral changed circumstances were alleged). “Asupplemental [PSIR] can provide the necessary




updating.” People v Hart, 129 Mich App 669, 674 (1983).However, an updated PSIR may be unnecessary if thetrial court has no sentencing discretion. People v Foy, 124Mich App 107, 110-112 (1983). In addition, “a defendantor the prosecutor may waive the right to a reasonablyupdated presentence report at resentencing where eachbelieves the previously prepared report is accurate.”People v Hemphill, 439 Mich 576, 582 (1992).

A victim of the probationer’s original offense “has theright to submit or make a written or oral impact statementto the probation officer for use by that officer in preparinga presentence investigation report[.]” MCL 780.764; seealso MCL 780.824 (providing the same right to the victimof a misdemeanor if a PSIR is prepared). The victim mayrequest that his or her written impact statement beincluded in the PSIR. MCL 771.14(2)(b); MCL 780.764;MCL 780.824; see also MCL 780.763(1)(c) (requiring theprosecuting attorney, upon request, to provide notice tothe victim of his or her right “to make a written or oralimpact statement for use in the preparation of apresentence investigation report concerning thedefendant[]”).91

b. Challenges to PSIR

MCL 771.14(6) provides:

At the time of sentencing, either party maychallenge, on the record, the accuracy orrelevancy of any information contained in thepresentence investigation report. The courtmay order an adjournment to permit theparties to prepare a challenge or a response toa challenge. If the court finds on the recordthat the challenged information is inaccurateor irrelevant, that finding shall be made a partof the record, the presentence investigationreport shall be amended, and the inaccurateor irrelevant information shall be strickenaccordingly before the report is transmitted tothe department of corrections.

MCR 6.425(E)(2)92 provides:

91 See Section 7.12(C)(4) for additional discussion of a victim’s rights during the sentencing process.92 MCR 6.445(G) requires the court to comply with MCR 6.425(E).













If any information in the presentence report ischallenged, the court must allow the partiesto be heard regarding the challenge, andmake a finding with respect to the challengeor determine that a finding is unnecessarybecause it will not take the challengedinformation into account in sentencing. If thecourt finds merit in the challenge ordetermines that it will not take the challengedinformation into account in sentencing, itmust direct the probation officer to

(a) correct or delete the challengedinformation in the report, whichever isappropriate, and

(b) provide [the] defendant’s lawyerwith an opportunity to review thecorrected report before it is sent to theDepartment of Corrections.

A defendant is entitled to be sentenced on the basis ofaccurate information. Townsend v Burke, 334 US 736, 740-741 (1948); People v Malkowski, 385 Mich 244, 249 (1971).The sentencing judge must respond to claims ofinaccuracy, and failure to do so may require resentencing.People v Harrison, 119 Mich App 491, 494-499 (1982).“[H]owever, the court has wide latitude in respondingto . . . [a challenge to the accuracy of informationcontained in a PSIR].” People v Spanke, 254 Mich App 642,648 (2003). “The court may determine the accuracy of theinformation, accept the defendant’s version, or simplydisregard the challenged information[;] . . . [s]hould thecourt choose the last option, it must clearly indicate that itdid not consider the alleged inaccuracy in determiningthe sentence.” Id. at 648-649. Under MCL 771.14(6),“[w]hen a sentencing court states that it will disregardinformation in a presentence report challenged asinaccurate, the defendant is entitled to have theinformation stricken from the report[]” before it is sent tothe Department of Corrections. People v Britt, 202 MichApp 714, 718 (1993); see also Spanke, 254 Mich App at 649.

3. Sentencing Procedure

MCR 6.445(G) provides, in part, that “[t]he court may notsentence the probationer to prison without . . . havingcomplied with the provisions set forth in . . . [MCR 6.425](E).”






MCR 6.425(E), in turn, provides, in part:

(E) Sentencing Procedure.

(1) The court must sentence the defendantwithin a reasonably prompt time after theplea or verdict unless the court delayssentencing as provided by law. At sentencing,the court must, on the record:

(a) determine that the defendant, thedefendant’s lawyer, and the prosecutorhave had an opportunity to read anddiscuss the presentence report,[93]

(b) give each party an opportunity toexplain, or challenge the accuracy orrelevancy of, any information in thepresentence report, and resolve anychallenges in accordance with theprocedure set forth in [MCR6.425](E)(2),[94]

(c) give the defendant, the defendant’slawyer, the prosecutor, and the victim anopportunity to advise the court of anycircumstances they believe the courtshould consider in imposingsentence,[95]

(d) state the sentence being imposed,including the minimum and maximumsentence if applicable, together with anycredit for time served to which thedefendant is entitled,[96]

(e) if the sentence imposed is not withinthe guidelines range, articulate thesubstantial and compelling reasonsjustifying that specific departure, and[97]

(f) order that the defendant make fullrestitution as required by law to any

93 See Section 7.12(C)(2) for discussion of the presentence information report (PSIR).94 See Section 7.12(C)(2)(b) for discussion of resolving challenges to the PSIR.95 See Section 7.13(B) for discussion of the defendant’s right to present mitigating circumstances. SeeSection 7.12(C)(4) for discussion of a victim’s rights at sentencing.96 See Section 7.12(C)(1) for discussion of determining the appropriate sentence.97 See Section 7.12(C)(1)(b) for discussion of the legislative sentencing guidelines.






victim of the defendant’s course ofconduct that gives rise to the conviction,or to that victim’s estate.[98]

(2) Resolution of Challenges. If any informationin the presentence report is challenged, thecourt must allow the parties to be heardregarding the challenge, and make a findingwith respect to the challenge or determinethat a finding is unnecessary because it willnot take the challenged information intoaccount in sentencing. . . .[99]

4. Victim’s Rights100

The victim of an offense, including an offense for which thedefendant is sentenced to probation, may register to receivecertain notices as provided for in the Crime Victim’s Rights Act(CVRA), MCL 780.751 et seq.101 MCL 780.763a(1) provides:

When a defendant is sentenced to probation,sentenced to a term of imprisonment, ordered to beplaced in a juvenile facility, or hospitalized in oradmitted to a hospital or a facility, the prosecutingattorney shall provide the victim with a form thevictim may submit to receive the notices providedfor under [MCL 780.768b, MCL 780.769, MCL780.769a, MCL 780.770, or MCL 780.770a].[102] Theform shall include the address of the court, thedepartment of corrections, the sheriff, thedepartment of human services, the county juvenileagency, or the hospital or facility, as applicable, towhich the form may be sent.

See also MCL 780.791a and MCL 780.828a(2), which containsimilar notification requirements for victims of juvenileoffenses and serious misdemeanors, respectively.

98 See Section 7.12(C)(4) for discussion of a victim’s rights at sentencing.99 See Section 7.12(C)(2)(b) for discussion of resolving challenges to the PSIR.100 See the Michigan Judicial Institute’s Crime Victim Rights Manual for a thorough discussion of a victim’srights.101 For information regarding registering with the Michigan Department of Corrections to receivenotifications under the CVRA, see http://www.michigan.gov/corrections/0,4551,7-119-1384---,00.html.102 MCL 780.768b provides for victim notification if probation is terminated early; MCL 780.769 providesfor victim notification upon a prisoner’s release or transfer within the corrections system; MCL 780.769aprovides for victim notification concerning the transfer or release of a defendant found not guilty by reasonof insanity; MCL 780.770 provides for victim notification upon a defendant’s escape; and MCL 780.770aaddresses notification to the victim of a juvenile offender’s escape.


http://courts.mi.gov/education/mji/Publications/Documents/Crime-Victim-Rights-Manual.pdf


http://www.michigan.gov/corrections/0,4551,7-119-1384---,00.html
















Additionally, MCL 780.763a(2) provides:

If the defendant is sentenced to probation, thedepartment of corrections or the sheriff, asapplicable, shall notify the victim if the probationis revoked and the defendant is sentenced to thedepartment of corrections or to jail for more than90 days. The notice shall include a form the victimmay submit to the department of corrections or thesheriff to receive notices under [MCL 780.769,MCL 780.770, or MCL 780.770a].103

If the probationer has been sentenced to imprisonment, thesheriff or Department of Corrections must, upon writtenrequest,104 mail the victim of the probationer’s original offensenotice if the probationer is convicted of a new crime. MCL780.769(1)(l).

In all cases, the victim of the probationer’s original offense mayrequest that his or her written impact statement be included inthe PSIR. MCL 771.14(2)(b); see also MCL 780.763(1)(c)(requiring the prosecuting attorney, upon request, to providenotice to the victim of his or her right “to make a written ororal impact statement for use in the preparation of apresentence investigation report concerning the defendant[]”).“The victim has the right to submit or make a written or oralimpact statement to the probation officer for use by the officerin preparing a presentence investigation report[.]” MCL780.764 (applicable to felony cases). See also MCL 780.792(providing a victim of a juvenile involved in juvenileproceedings, including designated proceedings, the same rightif a presentence report is prepared in anticipation ofdisposition or sentencing); MCL 780.824 (providing a victim ofa misdemeanor the same right if a PSIR is prepared).

In addition to providing impact information for inclusion inthe PSIR, the victim or a person designated by the victim maydeliver an oral impact statement to the court at the sentencinghearing. MCL 780.765; MCL 780.793; MCL 780.825; see alsoMCL 780.756(2) (requiring the prosecuting attorney, uponrequest, to “give the victim notice of any scheduled courtproceedings”); MCL 780.763(1)(f)-(g) (requiring theprosecuting attorney, upon request, to provide notice of “[t]he

103 MCL 780.769 addresses a victim’s right to be notified about a prisoner’s release or transfer within thecorrections system; MCL 780.770 addresses a victim’s right to be notified of a defendant’s escape; and MCL780.770a addresses notification to the victim of a juvenile offender’s escape.104 For information regarding registering with the Michigan Department of Corrections to receivenotifications under the CVRA, see http://www.michigan.gov/corrections/0,4551,7-119-1384---,00.html.



















http://www.michigan.gov/corrections/0,4551,7-119-1384---,00.html









victim’s right to make an impact statement at sentencing[]” andof “[t]he time and place of the sentencing proceeding[,]”respectively). The court must give the victim “an opportunityto advise the court of any circumstances [he or she] believe[s]the court should consider in imposing sentence[.]” MCR6.425(E)(1)(c). See also People v Steele, 173 Mich App 502, 504-505 (1988) (rejecting the defendant’s assertion that “the trialcourt was unduly swayed by the victim’s emotional commentsat sentencing[]” and holding that “[a]lthough [the victim’s]impact statements tended to be emotional, . . . her statementswere within her statutorily permitted rights”).

MCR 6.425(E)(1)(f)105 requires the court to “order that thedefendant make full restitution as required by law[.]”Restitution will have been ordered when the probation orderwas entered. See MCL 771.3(1)(e). MCL 780.766(19) states that“[i]f a defendant who is ordered to pay restitution under [MCL780.766] is remanded to the jurisdiction of the department ofcorrections, the court shall provide a copy of the order ofrestitution to the department of corrections when thedefendant is remanded to the department’s jurisdiction.” MCL780.794(19) and MCL 780.826(16) contain substantially similarprovisions that require the court to transmit the order ofrestitution when the court determines that the individualsubject to the order has been remanded to the Department ofCorrections.106

Additionally, in all cases (felony, misdemeanor, and juvenile),when a court orders the early termination of an offender’sprobation and the order of probation included a condition forthe victim’s protection, the court must, on request, notify thevictim by mail of the early termination. MCL 780.768b; MCL780.795a; MCL 780.827b.

7.14 Fines, Costs, and Restitution107

MCL 769.34(6) provides:

105 The court is required to comply with MCR 6.425(E) at sentencing. MCR 6.445(G).106 See Section 7.4(A)(2) for discussion of when a court may revoke probation based on the probationer’sfailure to comply with a restitution order.107 See Section 7.4(A)(2) for discussion of revocation of probation for failure to make a good-faith effort tocomply with financial obligations imposed as conditions of probation. See the Michigan Judicial Institute’sCriminal Procedure Monograph 8: Felony Sentencing, Part G, for a comprehensive discussion of fines, costs,assessments, and restitution ordered as part of a sentence.





















As part of [a] sentence, the court may . . . order the defendantto pay any combination of a fine, costs, or applicableassessments. The court shall order payment of restitution asprovided by law.

MCL 769.1k provides a general statutory basis for a court’s authority toimpose fines and costs. If a defendant pleads guilty or nolo contendere oris found guilty following a trial, the court must impose the minimumstate cost as set forth in MCL 769.1j108 at the time the defendant issentenced or at the time entry of judgment or sentence is statutorilydelayed or deferred. MCL 769.1k(1)(a). At the same time, MCL769.1k(1)(b) and MCL 769.1k(2) allow the court to also impose:

any fine;

any cost in addition to the minimum state cost set out in MCL769.1j;

the expenses of providing legal assistance to the defendant;

any assessment authorized by law;

reimbursement under MCL 769.1f; and

any additional costs incurred in compelling the defendant’sappearance.

MCL 769.1k(1)-(2) “apply even if the defendant is placed on probation,probation is revoked, or the defendant is discharged from probation.”MCL 769.1k(3). Moreover, “[t]he court may provide for the amountsimposed under [MCL 769.1k] to be collected at any time.” MCL 769.1k(5).Accordingly, the court may enforce any unfulfilled financial obligationimposed as a condition of probation after probation is revoked orotherwise terminated.

“The court may require the defendant to pay any fine, cost, or assessmentordered to be paid under [MCL 769.1k] by wage assignment.” MCL769.1k(4). “Except as otherwise provided by law, the court may applypayments received on behalf of a defendant that exceed the total of anyfine, cost, fee, or other assessment imposed in the case to any fine, cost,fee, or assessment that the same defendant owes in any other case.” MCL769.1k(6).

In addition to any other penalty, full restitution must be ordered atsentencing, MCL 769.1a(2); MCL 780.766(2); MCR 6.425(E)(1)(f), and thepayment of restitution must be ordered as a condition of probation, MCL

108 MCL 769.1j(1) requires imposition of the minimum state cost “if the court orders . . . any combinationof a fine, costs, or applicable assessments[.]”







http://legislature.mi.gov/doc.aspx?mcl-769-1f




















771.3(1)(e); MCL 780.766(11). Generally, restitution must be madeimmediately; however, the court has the discretion to require a defendantto make restitution within a specified period or in installments. MCL780.766(10). The Department of Corrections may execute a restitutionorder by withdrawing funds from a prisoner’s account, and there is nolegal right “to cessation of [] restitution payments while [a defendant]remains incarcerated.” White-Bey v Dep’t of Corrections, 239 Mich App 221,222, 225 (1999).

The court may initiate contempt proceedings at any time to enforceunfulfilled financial obligations, including an obligation imposed as acondition of probation. MCL 600.1701(e); see also MCL 769.1k(3); MCL769.1k(5).109 Additionally, “any fine, cost, restitution, reimbursement,assessment, or other fee . . . may be recovered in the same manner as acivil judgment for money in the same court.” MCL 600.4805(2).

______________________________________________

Committee Tip:

The probation violation sentencinghearing presents an opportunity toreview the defendant’s remainingfinancial obligations. 110

______________________________________________

7.15 Appeal

A. Advice of Right to Appeal or File Application for Leave to Appeal

1. Appeals from Circuit Court

MCR 6.445(H)(1) sets out a probationer’s appellate rights whenthe sentence imposed involves incarceration. MCR 6.445(H)does not apply to criminal cases cognizable in district courts.See MCR 6.001(B).

MCR 6.445(H) states:

109 However, a sentence that exposes an indigent offender to incarceration unless he or she pays fines,costs, or restitution violates the Equal Protection Clauses of the state and federal constitutions because itresults in unequal punishments based on economic status. See Tate v Short, 401 US 395, 397-400 (1971);People v Collins (Richard), 239 Mich App 125, 135-136 (1999); see also Section 7.4(A)(2).110 For information concerning collections, see SCAO’s Circuit Court Fee and Assessments Table, DistrictCourt Fee and Assessments Table, and Trial Court Collections Model Debt Inactivation Policy.


http://courts.mi.gov/Administration/SCAO/Resources/Documents/other/cfee.pdf





http://courts.mi.gov/Administration/SCAO/Resources/Documents/other/dfee.pdf

http://courts.mi.gov/Administration/SCAO/Resources/Documents/other/dfee.pdf

http://courts.mi.gov/Administration/SCAO/Resources/Documents/Collections/Policies/ModelDebtInactivationPolicy.pdf











(1) In a case involving a sentence of incarcerationunder [MCR 6.445](G), the court must advise theprobationer on the record, immediately afterimposing sentence, that

(a) the probationer has a right to appeal, if theunderlying conviction occurred as a result ofa trial, or

(b) the probationer is entitled to file anapplication for leave to appeal, if theunderlying conviction was the result of a pleaof guilty or nolo contendere.

(2) In a case that involves a sentence other thanincarceration under [MCR 6.445](G), the courtmust advise the probationer on the record,immediately after imposing sentence, that theprobationer is entitled to file an application forleave to appeal.

2. Appeals from District Court

MCR 6.625(A) provides that an appeal from a probationrevocation in a misdemeanor case is governed by MCRsubchapter 7.100. As with felony-based probation revocationappeals, the nature of an appeal from a misdemeanor-basedprobation revocation is determined by the manner in whichthe underlying misdemeanor conviction was entered, and notby whether a probation violation hearing was held or waivedby the defendant. If the defendant was convicted of theunderlying misdemeanor crime through a plea of guilty ornolo contendere, any subsequent probation revocation appealsarising from that conviction must be brought to the circuitcourt by way of an application for leave to appeal. See MCR7.103(A)(1); MCR 7.103(B)(1)(a). If the defendant was convictedof the underlying misdemeanor as a result of a trial, anysubsequent probation revocation appeals arising from thatconviction may be brought to the circuit court by way of anappeal of right. MCR 7.103(A)(1).

B. Scope of Appeal

A defendant may appeal “both after the original conviction and thegranting of probation and also after determination of violation ofprobation and imposition of [a prison sentence].” People v Pickett,391 Mich 305, 308, 316 (1974), superseded on other grounds byconstitutional amendment as stated in People v Kaczmarek, 464 Mich










478, 482 (2001). However, an appeal following revocation ofprobation “is limited in scope[ . . . and] encompasses only thoseissues that . . . could not have [been] raised in an appeal from [theoriginal] conviction.” Kaczmarek, 464 Mich at 485, citing Pickett, 391Mich at 316-318. The defendant may not use the appeal to attackprior proceedings; rather, the appeal is “limited to the matterssurrounding the immediate violation involved, i.e., . . . to thosematters relating to the probation violation[]” and to “the hearingthereon.” Pickett, 391 Mich at 308, 316.

Additionally, “[a] defendant’s plea of guilty on the allegation that he[or she] violated his [or her] probation subsumes any factualquestion whether the probation was violated.” Kaczmarek, 464 Michat 485, citing People v New, 427 Mich 482, 488-491 (1986).

A juvenile defendant in an automatic waiver proceeding “mayappeal as of right from the imposition of a sentence of incarcerationafter a finding of juvenile probation violation.” MCR 6.933(D).However, in a juvenile delinquency case, the juvenile may not attackthe order of disposition at a probation revocation hearing, andappeals following revocation of probation are limited to mattersrelated to the revocation hearing. In re Madison, 142 Mich App 216,219 (1985).111

C. Standards of Review

“‘The decision to revoke probation is a matter within the sentencingcourt’s discretion.’” People v Breeding, 284 Mich App 471, 479 (2009),quoting People v Ritter, 186 Mich App 701, 706 (1991). Similarly, “[a]trial court’s discretionary authority regarding the admission ofevidence at a probation revocation hearing is broad[, and] . . . [its]decision to admit or exclude evidence [is reviewed] for an abuse ofdiscretion.” Breeding, 284 Mich App at 479. “Under this standard,‘[a]n abuse of discretion occurs when the decision results in anoutcome falling outside the principled range of outcomes.’” Id.,quoting Woodard v Custer, 476 Mich 545, 557 (2006); see also People vBabcock, 469 Mich 247, 269 (2003).

If probation was revoked on the basis of a violation of a condition ofprobation that the appellate court determines is not lawful, theappropriate remedy is to remand for resentencing. People vGauntlett, 419 Mich 909, 909 (1984).

111 See Section 7.16 for discussion of juvenile probation.




7.16 Juveniles112

The rules and procedures discussed throughout this monograph applyequally to juveniles who are tried as adults following traditional waiverproceedings, as well as to juveniles who are tried as adults in designatedor automatic waiver proceedings when an adult sentence is imposed.

However, different rules apply to revocation of juvenile probation, whichmay be imposed in delinquency, designated, and automatic waiverproceedings. Rules applicable to juvenile probation imposed in thesetypes of proceedings are briefly discussed in this section. For additionaldiscussion of the revocation of probation in cases involving juveniles, seethe Michigan Judicial Institute’s Juvenile Justice Benchbook.

A. Traditional Waiver Proceedings

A juvenile who has been tried as an adult following traditionalwaiver to the court of general criminal jurisdiction under MCL712A.4 must be sentenced as an adult. People v Veling, 443 Mich 23,39 (1993), citing People v Cosby, 189 Mich App 461, 464 (1991); MCR6.901(B) (providing that the court rules applicable to juvenilessubject to automatic waiver for specified offenses, including therequirement of a juvenile sentencing hearing (“waiver back”), donot apply to cases in which the Family Division waived jurisdictionunder MCL 712A.4); see also People v Williams (Walter), 245 MichApp 427, 433-434 (2001). Accordingly, a juvenile who is sentenced toprobation following conviction in a traditional waiver proceeding issubject to the rules governing adult probation, as discussedthroughout this monograph. See the Michigan Judicial Institute’sJuvenile Justice Benchbook, Chapter 14, for discussion of traditionalwaiver proceedings.

B. Automatic Waiver Proceedings113

Following conviction in automatic waiver proceedings, a juvenilemay be sentenced as an adult or placed on juvenile probation andcommitted to the Department of Human Services (DHS) as a publicward. MCL 769.1(3)-(4); MCR 6.931(C). MCR 6.931(F)(1)-(11) limitthe court’s authority to impose certain probation conditions on thejuvenile that may be imposed in a case involving an adult.

112 For thorough discussion of probation imposed against juveniles in different types of juvenileproceedings, see the Michigan Judicial Institute’s Juvenile Justice Benchbook.113 See the Michigan Judicial Institute’s Juvenile Justice Benchbook, Chapter 16, for a thorough discussionof probation revocation proceedings in automatic waiver cases.















When a juvenile in an automatic waiver case is alleged to haveviolated juvenile probation, the court must proceed according toMCR 6.445(A)-(F), which governs probation revocation in adultcriminal proceedings. See MCR 6.933(A).

1. Mandatory Revocation of Juvenile Probation

In automatic waiver proceedings, the court must revokejuvenile probation and impose a sentence of imprisonment ifthe juvenile is convicted of a felony or a misdemeanorpunishable by imprisonment for more than one year. MCL771.7(1); MCR 6.933(B)(1)(a). However, “[t]he court may notrevoke probation and impose sentence under [MCR6.933(B)(1)] unless at the original sentencing the court gave theadvice, as required by MCR 6.931(F)(2), that subsequentconviction of a felony or a misdemeanor punishable by morethan one year’s imprisonment would result in the revocation ofjuvenile probation and in the imposition of a sentence ofimprisonment.” MCR 6.933(B)(1)(b).

“If the court revokes juvenile probation pursuant to [MCR6.933(B)(1)], the court must receive an updated presentencereport and comply with MCR 6.445(G)[114] before it imposes aprison sentence on the juvenile.” MCR 6.933(B)(3).

2. Other Probation Violations

In automatic waiver proceedings, if the juvenile violatesprobation in some way other than by committing a felony or amisdemeanor punishable by more than one year’simprisonment, the court may impose sentence or may orderany of the following for the juvenile:

a change of placement;

restitution;

community service;

substance abuse counseling;

mental health counseling;

114 MCR 6.445(G) provides, in part, that “[t]he court may not sentence the probationer to prison withouthaving considered a current presentence report and having complied with the provisions set forth in MCR6.425(B) [(governing presentence report disclosure before sentencing)] and [MCR 6.425](E) [(governingsentencing procedure)].” See Section 7.13 for discussion of imposition of sentence following probationrevocation.




















participation in a vocational-technical educationprogram;

incarceration in a county jail, in a room or ward out ofsight and sound from adult prisoners for juvenilesunder the age of 17, for not more than 30 days; and

other participation or performance as the courtconsiders necessary. See MCL 771.7(2); MCR6.933(B)(2).

3. Sentence Following Probation Revocation

In automatic waiver proceedings, a sentence imposedfollowing probation revocation must be “for a term of years thatdoes not exceed the penalty that could have been imposed forthe offense for which the juvenile was originally convicted andplaced on probation.” MCL 771.7(1) (emphasis supplied). MCR6.933(B)(1)(a) contains substantially similar language. SeePeople v Valentin, 457 Mich 1, 13-14 (1998) (term of lifeimprisonment may not be imposed under MCL 771.7(1)).

If a sentence of imprisonment is imposed upon a juvenilewhose probation is revoked, the juvenile must receive creditfor the time served on probation. MCL 771.7(1); MCR6.933(B)(1)(a).

“If the court determines to place the juvenile in jail for up to 30days, and the juvenile is under 17 years of age, the juvenilemust be placed separately from adult prisoners as required bylaw.” MCR 6.933(B)(2).

C. Designated Proceedings Involving Delayed Imposition of Sentence115

Under MCL 712A.18(1)(m), following conviction in a designatedproceeding, the court may (1) enter a juvenile disposition,116 (2)impose an adult sentence,117 or (3) enter an order of dispositiondelaying imposition of sentence and placing the juvenile onprobation upon the terms and conditions it considers appropriate.

115 For additional discussion of juvenile probation in designated cases in which sentencing was delayed,see the Michigan Judicial Institute’s Juvenile Justice Benchbook, Chapter 15.116 For discussion of the revocation of juvenile probation in a designated case in which a juveniledisposition was ordered, see the Michigan Judicial Institute’s Juvenile Justice Benchbook, Chapter 11.117 In a case in which an adult sentence was imposed in a designated proceeding, the rules applicable toadult probation revocation proceedings apply.

















1. Probation Violation Hearing

In designated proceedings in which a delayed imposition ofsentence has been ordered, probation violation hearings mustbe conducted pursuant to MCR 3.944(C), which governsprobation violation hearings in juvenile delinquencyproceedings. MCR 3.956(B)(3). MCR 3.944(C) provides:

(1) At the probation violation hearing, the juvenilehas the following rights:

(a) the right to be present at the hearing,

(b) the right to an attorney pursuant to MCR3.915(A)(1),[118]

(c) the right to have the petitioner prove theprobation violation by a preponderance of theevidence,

(d) the right to have the court order anywitnesses to appear at the hearing,

(e) the right to question witnesses against thejuvenile,

(f) the right to remain silent and not have thatsilence used against the juvenile, and

(g) the right to testify at the hearing, if thejuvenile wants to testify.

(2) At the probation violation hearing, theMichigan Rules of Evidence do not apply, otherthan those with respect to privileges. There is noright to a jury.

(3) If it is alleged that the juvenile violatedprobation by having been found, pursuant to MCR3.941 [(governing pleas of admission or no contestin delinquency proceedings)] or MCR 3.942[][(governing trial in delinquency proceedings)], tohave committed an offense, the juvenile may thenbe found to have violated probation pursuant tothis rule.

118 “If the juvenile is not represented by an attorney, the court shall advise the juvenile of the right to theassistance of an attorney at each stage of the proceedings on the formal calendar, including trial, plea ofadmission, and disposition.” MCR 3.915(A)(1). See MCR 3.951(A)(2)(b)(i) and MCR 3.951(B)(2)(b)(i), whichstate that MCR 3.915(A)(1) is applicable to designated proceedings.


http://courts.mi.gov/Courts/MichiganSupremeCourt/CurrentCourtRules/1Chapter3SpecialProceedingsandActions.pdf

















2. Mandatory Probation Revocation

In a designated proceeding, “[i]f a juvenile placed on probationunder an order of disposition delaying imposition of sentenceis found by the court to have violated probation by beingconvicted of a felony or a misdemeanor punishable byimprisonment for more than 1 year, or adjudicated asresponsible for an offense that if committed by an adult wouldbe a felony or a misdemeanor punishable by imprisonment formore than 1 year, the court shall revoke probation andsentence the juvenile to imprisonment for a term that does notexceed the penalty that could have been imposed for theoffense for which the juvenile was originally convicted andplaced on probation.” MCL 712A.18i(9); see also MCR3.956(B)(1).

3. Other Probation Violations

If the juvenile violates probation in some way other than bybeing convicted of a felony or a misdemeanor punishable bymore than one year’s imprisonment or by being adjudicated asresponsible for an offense that if committed by an adult wouldbe a felony or a misdemeanor punishable by imprisonment formore than one year, the court may impose sentence or mayorder any of the following for the juvenile:

a change in placement;

community service;

substance abuse counseling;

mental health counseling;

participation in a vocational-technical educationprogram;

incarceration in a county jail for not more than 30days if:

the present county jail facility would meet allrequirements under federal law and regulationsfor housing juveniles, and

the court has consulted with the sheriff todetermine when the sentence will begin toensure that space will be available for thejuvenile. If the juvenile is under 17 years of age,the juvenile must be placed in a room or wardout of sight and sound from adult prisoners; and




http://legislature.mi.gov/doc.aspx?mcl-712A-18i


other participation or performance as the courtconsiders necessary. MCR 3.956(B)(2); see also MCL712A.18i(10).

4. Sentence Following Probation Revocation

In a designated proceeding, a sentence of imprisonmentimposed following probation revocation must be “for a termthat does not exceed the penalty that could have been imposedfor the offense for which the juvenile was originally convictedand placed on probation.” MCL 712A.18i(9); MCR 3.956(B)(1).Furthermore, the juvenile must receive credit for the timeserved on probation. MCL 712A.18i(11); MCR 3.956(B)(4).

D. Imposition of Juvenile Disposition in Delinquency and Designated Proceedings

Special rules apply regarding probation violation proceedings andprobation revocation following the imposition of a juveniledisposition in a delinquency or designated proceeding. These rulesare beyond the scope of this benchbook. For discussion of therevocation of juvenile probation in a delinquency case or in adesignated proceeding in which a juvenile disposition was entered,see the Michigan Judicial Institute’s Juvenile Justice Benchbook,Chapter 11.

7.17 Probation Swift and Sure Sanctions ActEffective January 9, 2013, 2012 PA 616 added the Probation Swift andSure Sanctions Act, MCL 771A.1 et seq., establishing a voluntary, grant-funded “state swift and sure sanctions program” for the supervision ofparticipating offenders who have been placed on probation forcommitting a felony. MCL 771A.3; see also MCL 771A.2(b). Under theProbation Swift and Sure Sanctions Act, a circuit court may apply to theState Court Administrative Office (SCAO) for a grant to fund a swift andsure probation supervision program. MCL 771A.4(2).119 A probationerparticipating in such a program is subject to close monitoring and toprompt arrest and the immediate imposition of sanctions following aprobation violation. See MCL 771A.3; MCL 771A.5(1).

119 “The funding of all grants under [Chapter XIA of the code of criminal procedure] is subject toappropriation.” MCL 771A.4(2).

















A. Objectives

MCL 771A.3 sets out the objectives of the state swift and suresanctions program:

It is the intent of the legislature to create a voluntarystate program to fund swift and sure probationsupervision at the local level based upon the immediatedetection of probation violations and prompt the [sic]imposition of sanctions and remedies to address thoseviolations. In furtherance of this intent, the state swiftand sure sanctions program is created with thefollowing objectives:

(a) Probationers are to be sentenced withprescribed terms of probation meeting theobjectives of [Chapter XIA of the code of criminalprocedure]. Probationers are to be aware of theirprobation terms as well as the consequences forviolating the terms of their probation.

(b) Probationers are to be closely monitored andevery detected violation is to be promptlyaddressed by the court.

(c) Probationers are to be arrested as soon as aviolation has been detected and are to be promptlytaken before a judge for a hearing on the violation.

(d) Continued violations are to be addressed byincreasing sanctions and remedies as necessary toachieve results.

(e) To the extent possible and considering localresources, probationers subject to swift and sureprobation under [Chapter XIA] shall be treateduniformly throughout the state.

B. Swift and Sure Probation Supervision Program Requirements

MCL 771A.5(1) provides that a probation supervision programfunded under the Probation Swift and Sure Sanctions Act must doall of the following:

(a) Require the court to inform the probationer inperson of the requirements of his or her probation andthe sanctions and remedies that may apply to probationviolations.









(b) Require the probationer to initially meet in personwith a probation agent or probation officer and asotherwise required by the court.

(c) Provide for an appearance before the judge for anyprobation violation as soon as possible but within 72hours after the violation is reported to the court unless adeparture from the 72-hour requirement is authorizedfor good cause as determined by criteria established by[SCAO].

(d) Provide for the immediate imposition of sanctionsand remedies approved by [SCAO][120] to effectivelyaddress probation violations. The sanctions andremedies approved under this subdivision may include,but need not be limited to, 1 or more of the following:

(i) Temporary incarceration in a jail or other facilityauthorized by law to hold probation violators.

(ii) Extension of the period of supervision withinthe period provided by law.

(iii) Additional reporting and compliancerequirements.

(iv) Testing for the use of drugs and alcohol.

(v) Counseling and treatment for emotional orother mental health problems, including forsubstance abuse.

(vi) Probation revocation.

SCAO is required to annually review all grant-funded swift andsure probation supervision programs “for effectiveness and forcompliance with the requirements of [Chapter XIA].” MCL 771A.7.

120 MCL 771A.5(2) authorizes SCAO to “do any of the following” with respect to swift and sure probationsupervision programs:

(a) Establish general eligibility requirements for offender participation.(b) Require courts and offenders to enter into written participation agreements.(c) Create recommended and mandatory sanctions and remedies for use by participating courts.(d) Establish criteria for deviating from recommended and mandatory sanctions and remedieswhen necessary to address special circumstances.(e) Establish a system for determining sanctions and remedies that should or may be imposedunder [MCL 771A.5(2)(c)] and for alternative sanctions and remedies under [MCL 771A.5(2)(d)].

See http://courts.mi.gov/administration/admin/op/problem-solving-courts/pages/swift-and-sure-sanctions-probation-program.aspx for current SCAO requirements, including participant eligibilityguidelines and application materials.





http://courts.mi.gov/administration/admin/op/problem-solving-courts/pages/swift-and-sure-sanctions-probation-program.aspx



In addition, all swift and sure probation supervision programs aresubject to audit by SCAO. MCL 771A.8.

Part C—Quick Reference Materials

7.18 How to Use the Flowchart and ChecklistsThe flowchart and checklists refer to four separate stages of probationrevocation proceedings: arraignments, plea proceedings, contestedhearings, and sentencing hearings.121 We have adopted this approachbecause it is helpful for analytical purposes to clearly delineate theprocedural safeguards required at each stage of the proceedings. Thisdoes not mean, however, that each of these proceedings occurs on aseparate date. In many cases, all of these proceedings occur back-to-backon the same court date. For example, in some courts it is commonpractice for the probation officer to bring an updated presentenceinformation report to the arraignment. The probationer and his or herattorney are given an opportunity to read the report and may, if theychoose, plead guilty and be sentenced all on the same day. When thisoccurs, it is easy for the judge to overlook some of the necessaryprocedural steps unless he or she has a detailed set of checklists toconsult. Thus, it is hoped that the following easy-to-read checklists willmake errors of omission less likely.

121 A swift and sure probation supervision program that is funded under the Probation Swift and SureSanctions Act, MCL 771A.1 et seq., is subject to additional requirements for the apprehension andsanctioning of participating probation violators. For example, an offender participating in such a programmust be “arrested as soon as a violation has been detected[,]” MCL 771A.3(b)-(c), and must be broughtbefore a judge “as soon as possible but within 72 hours after the violation is reported to the court” unlessgood cause is shown for the delay, MCL 771A.5(1)(c). The flowchart and checklist materials do not addressthese additional procedural requirements. Section 7.17 for discussion of the Probation Swift and SureSanctions Act. See http://courts.mi.gov/administration/admin/op/problem-solving-courts/pages/swift-and-sure-sanctions-probation-program.aspx for current SCAO requirements.









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7.19 Probation Revocation FlowchartArraignment

MCR 6.445(B)1. Ensure probationer receives written notice of alleged violation(s). Determine whether probationer has bee

notice sufficiently in advance of proceedings to afford reasonable opportunity to prepare.2. Advise probationer of the rights to attorney, contested hearing, and release from jail if contested hearin

conducted within 14 days.3. If probationer is unrepresented, appoint counsel if indigent, or obtain waiver.4. Advise probationer of the maximum possible jail or prison sentence that may be imposed if probationer i

guilty.5. Ask probationer how he or she pleads.6. If probationer pleads guilty or nolo contendere, proceed to take plea. See MCR 6.445(F).7. If probationer pleads not guilty or stands mute, set a reasonably prompt hearing date. If probationer is in c

hearing should be set within 14 days of arraignment or probationer must be released. (May delay revproceedings to await outcome of related criminal proceedings.) See MCR 6.445(C).

8. Set or deny bail.

Contested HearingMCR 6.445(E)

1. If probationer is unrepresented, probationer of the right to counsel. Appointif probationer is indigent, or obtain a waiMCR 6.445(D).

2. Hear evidence and make findings of fact.3. Determine whether a violation has been est

by a preponderance of the evidence.4. If probationer is found guilty and a prison s

is possible, refer to probation departmenupdated PSIR. See MCR 6.425(B).

SentencingMCR 6.445(G); MCR 6.425(B); MCR 6.425(E)

1. If probationer is unrepresented, readvise probationer of the right to counsel. Appoint counsel if probatindigent, or obtain a waiver. See MCR 6.445(D).

Begin here if sentencing immediately follows plea.

2. Give probationer, defense attorney, and prosecutor the opportunity to read and discuss the PSIR.3. Give the parties a reasonable opportunity to explain or challenge information in the PSIR. Make finding

court will consider the challenged information when imposing sentence.4. If present, give the victim an opportunity to make an impact statement.5. If probation is revoked, impose sentence, stating the minimum and maximum sentence and giving credit

served.

Guilty or Nolo Contendere PleaMCR 6.445(F)

1. Advise probationer that by pleading guilty or nolocontendere, he or she is giving up the right to acontested hearing.

2. Readvise probationer of the right to counsel. Ifunrepresented, advise probationer that by pleadingguilty or nolo contendere he or she is giving up theright to counsel. See MCR 6.445(D).

3. Advise probationer of charged violation(s).4. Readvise probationer of the maximum possible jail

or prison sentence.5. Ask probationer how he or she pleads.

Begin here if plea immediately follows arraignment.6. Establish factual support for the plea.7. Determine that the plea is understandingly,

voluntarily, and knowingly made.8. Accept or reject the plea.9. If a prison sentence is possible, refer to probation

department for updated PSIR. See MCR 6.425(B).10. Set, continue, or deny bail, as appropriate.
















7.20 Checklist 1: Arraignment—MCR 6.445(B)

1. Ensure probationer receives written notice of alleged violation(s). Determinewhether probationer has been given notice sufficiently in advance of theproceedings to afford a reasonable opportunity to prepare.

2. Advise probationer of the right to a contested hearing on the charges.

3. Advise probationer that he or she has the right to the assistance of an attorney, andthat if he or she is financially unable to obtain an attorney but wants an attorney,the court will appoint one at public expense.

4. If probationer is unrepresented and indigent, appoint counsel. If probationer is notindigent, allow probationer a reasonable opportunity to obtain counsel ifnecessary.

5. Advise a probationer in custody that if the revocation hearing does not take placewithin 14 days after arraignment, he or she is to be released from custody pendingthe hearing.

6. Advise probationer of the maximum possible jail or prison sentence that may beimposed if the probationer is found guilty.

7. Ask probationer how he or she pleads:

stand mute not guilty no contest guilty

8. If probationer stands mute or pleads not guilty, set a reasonably prompt hearingdate. See MCR 6.445(C).

If probationer is in custody, the hearing should be set within 14days of arraignment or the probationer must be released; or

Court may delay revocation proceedings to await the outcome ofrelated criminal proceedings.

9. Set or deny bail.

10. If probationer pleads guilty or no contest, move to step 7 in Section 7.19, Checklist2 (Guilty or Nolo Contendere Plea).





7.21 Checklist 2: Guilty or Nolo Contendere Plea—MCR 6.445(F)

1. Advise probationer that by pleading guilty he or she is giving up the right to acontested hearing.

2. Readvise probationer of the right to counsel and the right to appointed counsel ifprobationer is indigent. See MCR 6.445(D); MCR 6.005(E).

3. If probationer is unrepresented, advise probationer that by pleading guilty he orshe is giving up the right to counsel. See MCR 6.445(D); MCR 6.005(E).

Ask probationer to affirm that he or she does not want an attorney’sassistance.

4. Readvise probationer of the alleged probation violation(s).

5. Readvise probationer of the maximum possible jail or prison sentence for theoffense that led to probation.

6. Ask probationer how he or she pleads:

guilty no contest

Begin here if plea immediately follows arraignment.

7. Establish on the record factual support for finding that the probationer is guilty of acharged violation.

8. Determine and state for the record that the plea is understandingly, voluntarily, andknowingly made.

9. Accept or reject the plea.

10. If plea is accepted, schedule a date for sentencing or proceed to sentencing if inpossession of an updated presentence report.

Unless it is certain that a prison sentence will not be imposed, referprobationer to probation department for preparation of updatedpresentence report. See MCR 6.445(G); MCR 6.425(B).

11. Set, continue, or deny bail, as appropriate.











7.22 Checklist 3: Contested Hearing—MCR 6.445(E)

1. If probationer is not represented by counsel, readvise probationer of the right to theassistance of an attorney, and that if he or she is financially unable to obtain anattorney but wants an attorney, the court will appoint one at public expense. SeeMCR 6.445(D); MCR 6.005(E).

Ask probationer to affirm that he or she does not want anattorney’s assistance; or

If counsel is requested, adjourn hearing and appoint counsel.

2. Hold revocation hearing at which:

The rules of evidence other than those with respect to privilegesdo not apply.

The court may consider only evidence that is relevant to analleged violation.

All evidence against probationer is disclosed to probationer.

Probationer has right to appear, present evidence, and cross-examine witnesses.

The state must establish a probation violation by apreponderance of the evidence.

3. Make findings of fact. See MCR 6.403.

4. On the record or in a written opinion made a part of the record, state separately thefindings of fact and conclusions of law as to whether the charged violation(s) has/have or has/have not been established by a preponderance of the evidence, anddirect entry of the appropriate judgment. See MCR 6.403.

5. If the court finds that the probationer violated his or her probation, schedule a datefor sentencing or proceed to sentencing if in possession of an updated presentencereport. See MCR 6.445(G); MCR 6.425(B).

Unless it is certain that a prison sentence will not be imposed,refer probationer to probation department for preparation of anupdated presentence report.

6. Set, continue, or deny bail, as appropriate.










7.23 Checklist 4: Sentencing—MCR 6.445(G); MCR 6.425(B); MCR 6.425(E)

1. If probationer is not represented by counsel, readvise probationer of the right to theassistance of an attorney, and that if he or she is financially unable to obtain anattorney but wants an attorney, the court will appoint one at public expense. SeeMCR 6.445(D); MCR 6.005(E).

Ask probationer to affirm that he or she does not want anattorney’s assistance; or

If counsel is requested, adjourn hearing and appoint counsel.

Begin here if sentencing immediately follows guilty or nolo contendere plea.

2. If there is a presentence information report, give probationer, defense attorney, andprosecutor a reasonable opportunity to read and discuss the report.

A prison sentence may not be imposed without an updatedpresentence information report and compliance with MCR6.425(B) and MCR 6.425(E).

3. Give the parties a reasonable opportunity to explain or challenge information inthe presentence report.

4. If information in the report is challenged, make a finding regarding the issue, orstate that the challenged information will not be considered.

Correct or delete challenged information, if appropriate; and

Provide defense attorney an opportunity to review the correctedreport before it is sent to the Department of Corrections.

5. Give the probationer, defense attorney, prosecutor, and victim, if present, anopportunity to make a statement.

6. Continue, modify, extend, or revoke probation.

If probation is revoked, impose sentence, stating minimum andmaximum sentence.

If sentence is not within the guidelines range, articulate thesubstantial and compelling reasons justifying the departure.

7. Grant credit for time served.












8. If a sentence of incarceration is imposed, advise probationer that he or she has:

the right to appeal if the underlying conviction occurred as a result of atrial; or

the right to file an application for leave to appeal if the underlyingconviction resulted from a guilty or nolo contendere plea. See MCR6.445(H)(1).

9. If a sentence of incarceration is not imposed, advise the probationer that he or shehas the right to file an application for leave to appeal. See MCR 6.445(H)(2).





Monograph 7: Probation Revocation—Fourth Edition Subject Matter Index

Subject Matter Index

AAppeal 7-75

standards of review 7-77Arraignment 7-44, 7-88

notice of right to hearing 7-46notice of violation 7-45plea of guilty or nolo contendere 7-47release or detention of probationer 7-46, 7-54right to counsel 7-46time requirements 7-44

Arrest 7-41arrest warrant 7-41

delay in executing arrest warrant 7-33, 7-43prosecutorial discretion 7-42

probable cause 7-12, 7-42warrantless arrest 7-21, 7-44

BBurden of proof 7-23, 7-59

DDetention or release of probationer 7-46, 7-47, 7-54Double jeopardy

criminal prosecution based on same conduct 7-23sentence 7-64

Due diligence 7-32, 7-33commencement of revocation proceedings 7-33delay between arrest and hearing 7-33delay between notice of violation and hearing 7-33delay in executing arrest warrant 7-33, 7-43

Due process 7-9arrest 7-10, 7-12delay between arrest and hearing 7-12, 7-33delay between notice of violation and hearing 7-12, 7-33delay in executing arrest warrant 7-33hearing officer 7-11, 7-39

report of hearing officer 7-11, 7-61limited nature of probationer’s rights 7-9minimum federal requirements 7-10

preliminary hearing 7-10revocation hearing 7-11

Michigan Judicial Institute © 2013 Page 1

Subject Matter Index Monograph 7: Probation Revocation—Fourth Edition

notice of right to hearing 7-10, 7-34, 7-38, 7-46, 7-49notice of violation 7-10, 7-11, 7-34, 7-35, 7-45, 7-60plea of guilty or nolo contendere 7-48, 7-89

factual support for plea 7-51understanding, voluntary, and accurate plea 7-50

preliminary hearing 7-10, 7-44privilege against self-incrimination 7-57probable cause determination 7-10, 7-42requirements under Michigan Constitution 7-12, 7-15revocation hearing 7-11, 7-12, 7-46, 7-52right of confrontation 7-10, 7-11, 7-19, 7-56, 7-57right to counsel 7-14, 7-46

advice and waiver procedure 7-16advice of right to counsel 7-16, 7-49, 7-54appointed counsel 7-15, 7-46arraignment 7-46federal right to counsel 7-14opportunity to obtain counsel 7-15, 7-46plea of guilty or nolo contendere 7-49right to counsel under Michigan Constitution 7-15sentence enhancement based on uncounseled conviction 7-18, 7-66sentencing 7-14violation hearing 7-54waiver 7-16, 7-49, 7-54

search and seizure 7-20arrest 7-21, 7-44arrest warrant 7-21exclusionary rule 7-21, 7-58warrantless arrest 7-21, 7-44warrantless search of probationer’s residence 7-20

violation hearing 7-10, 7-12, 7-46, 7-52

EEvidence 7-52, 7-54

admissibility of statements 7-57burden of proof 7-59establishing probation violation 7-59hearsay 7-56privilege against self-incrimination 7-57probationer’s right to present evidence 7-56relevance 7-55right of confrontation 7-10, 7-19, 7-56, 7-57search and seizure 7-20

exclusionary rule 7-21, 7-58

Page 2 Michigan Judicial Institute © 2013


FFines, costs, and restitution 7-25Forum—see Judges who may preside over revocation proceedings

IInterstate Compact for Adult Offender Supervision 7-41

JJudges who may preside over revocation proceedings 7-39Juveniles 7-78

appeal 7-75automatic waiver proceedings 7-78

sentence 7-80delinquency proceedings 7-83designated proceedings 7-80, 7-83

dispositions 7-82mandatory probation revocation 7-82sentence 7-83violation hearing 7-81

traditional waiver proceedings 7-78

NNotice

notice of right to hearing 7-10, 7-11, 7-34, 7-38, 7-46, 7-49notice of violation 7-10, 7-11, 7-34, 7-35, 7-45, 7-60

contents 7-35harmless error 7-38time requirements 7-36waiver 7-37, 7-45

PPlea of guilty or nolo contendere 7-47, 7-89

advice of maximum sentence 7-49advice of rights 7-48, 7-49appeal 7-75factual support for plea 7-51sentencing 7-50understanding, voluntary, and accurate plea 7-50waiver of rights 7-37, 7-45, 7-48, 7-49withdrawal of plea 7-52

Presentence information report (PSIR) 7-66challenges to PSIR 7-68updated PSIR 7-66

Probation revocation—see Sentencing—probation revocation



Probation Swift and Sure Sanctions Act 7-83Probation violation

arraignment 7-44, 7-88arrest warrant 7-41

probable cause 7-12, 7-42prosecutorial discretion 7-42

burden of proof 7-23conduct constituting violation 7-22, 7-59, 7-60, 7-61

conduct occurring after expiration of probationary sentence 7-31conduct occurring before commencement of probationary sentence 7-29criminal offense 7-23, 7-24, 7-25, 7-47failure to pay fines, costs, or restitution 7-25violation of conditions by incarcerated probationer 7-29violation of conditions of amended probation order 7-31violation of mandatory or discretionary conditions 7-22violation of other lawful conditions 7-28violation of unstated conditions 7-29

criminal prosecution based on same conduct 7-23, 7-24, 7-25, 7-42, 7-47, 7-57, 7-59

detention or release of probationer 7-47, 7-54due diligence 7-32, 7-33, 7-43due process requirements 7-9, 7-12establishing violation 7-59evidence 7-52, 7-54failure to pay fines, costs, or restitution 7-25incarcerated probationer 7-29judges 7-39notice of right to hearing 7-10, 7-34, 7-38, 7-46, 7-49notice of violation 7-10, 7-34, 7-35, 7-45, 7-60plea of guilty or nolo contendere 7-47, 7-48, 7-89

advice of maximum sentence 7-50advice of rights 7-48, 7-49appeal 7-75factual support for plea 7-51understanding, voluntary, and accurate plea 7-50waiver of rights 7-37, 7-45, 7-48, 7-49withdrawal of plea 7-52

prosecutorial discretion 7-42report of judge or hearing officer 7-10, 7-61revocation of probation 7-11

appeal 7-75right to counsel 7-14, 7-16, 7-46sentencing 7-91SORA violation 7-25summons 7-41, 7-42

probable cause 7-42time requirements

arraignment 7-44



commencement of revocation proceedings 7-32notice of violation 7-36sentencing 7-62violation hearing 7-46, 7-47, 7-54

violation hearing 7-52, 7-59, 7-90Prosecutorial discretion 7-42

RRelease or detention of probationer 7-46, 7-54Revocation hearing—see Due process—revocation hearing or Violation hearingRevocation of probation—see Sentencing—probation revocationRevocation proceedings 7-87

arraignment 7-44, 7-88arrest warrant 7-41

probable cause 7-12, 7-42prosecutorial discretion 7-42

burden of proof 7-23detention or release of probationer 7-47, 7-54due diligence 7-32, 7-33, 7-43due process requirements 7-9, 7-12establishing probation violation 7-59evidence 7-52, 7-54judges 7-39notice of right to hearing 7-10, 7-34, 7-38, 7-46, 7-49notice of violation 7-10, 7-34, 7-35, 7-45, 7-60plea of guilty or nolo contendere 7-47, 7-48, 7-89

advice of maximum sentence 7-50advice of rights 7-48, 7-49appeal 7-75factual support for plea 7-51understanding, voluntary, and accurate plea 7-50waiver of rights 7-37, 7-45, 7-48, 7-49withdrawal of plea 7-52

prosecutorial discretion 7-42report of judge or hearing officer 7-11, 7-61revocation of probation 7-11

appeal 7-75right to counsel 7-14, 7-16, 7-46sentencing 7-91summons 7-41, 7-42

probable cause 7-42time requirements 7-32, 7-46, 7-47

arraignment 7-44commencement of proceedings 7-32notice of violation 7-36sentencing 7-62violation hearing 7-47, 7-54



violation hearing 7-52, 7-59, 7-90Right to counsel 7-14, 7-46

advice and waiver procedure 7-16advice of right to counsel 7-49, 7-54appointed counsel 7-15, 7-46arraignment 7-46federal right to counsel 7-14opportunity to obtain counsel 7-15, 7-46plea of guilty or nolo contendere 7-49right to counsel under Michigan Constitution 7-15sentence enhancement based on uncounseled conviction 7-18, 7-66sentencing 7-14violation hearing 7-54waiver 7-16, 7-49, 7-54

advice and waiver procedure 7-16

SSearch and seizure 7-20

arrest 7-21, 7-44arrest warrant 7-21exclusionary rule 7-21, 7-58warrantless arrest 7-21, 7-44warrantless search of probationer’s residence 7-20

Sentencing 7-61, 7-91appeal 7-91determining sentence 7-63

consecutive sentences 7-64credit for time served 7-64maximum sentence 7-63sentencing guidelines 7-63

mitigation 7-62plea of guilty or nolo contendere 7-50presentence information report (PSIR) 7-66

challenges to PSIR 7-68updated PSIR 7-66

probation revocation 7-62conduct occurring after expiration of probationary sentence 7-31conduct occurring before commencement of probationary sentence 7-29criminal offense 7-23due process requirements 7-10, 7-12failure to pay fines, costs, or restitution 7-25uncounseled conviction 7-18, 7-66violation of conditions by incarcerated probationer 7-29violation of conditions of amended probation order 7-31violation of mandatory or discretionary conditions 7-22violation of other lawful conditions 7-28violation of unstated conditions 7-29



procedure 7-69sentence enhancement based on uncounseled conviction 7-18, 7-66time requirements 7-62victim’s rights 7-71

Separation of powers 7-42Summons 7-41, 7-42

probable cause 7-42prosecutorial discretion 7-42

Swift and sure programs—see Probation Swift and Sure Sanctions Act

VVictim’s rights 7-71Violation hearing 7-11, 7-46, 7-52, 7-90

due process requirements 7-11, 7-12, 7-46, 7-52establishing probation violation 7-59evidence 7-54time requirements 7-46, 7-47, 7-54




Tables of Authority

Cases

Michigan Statutes

Michigan Court Rules

Michigan Rules of Evidence


Table of Authorities IndexMonograph 7: Probation Revocation—Fourth Edition


TABLE OF AUTHORITIES

CasesAAlabama v Shelton, 535 US 654 (2002) 7-18, 7-66Alabama v Smith, 490 US 794 (1989) 7-65

BBaldasar v Illinois, 446 US 222 (1980) 7-18Bearden v Georgia, 461 US 660 (1983) 7-26, 7-27Black v Romano, 471 US 606 (1985) 7-62

CCrawford v Washington, 541 US 36 (2004) 7-19, 7-57

FFare v Michael C, 442 US 707 (1979) 7-57

GGagnon v Scarpelli, 411 US 778 (1973) 7-9, 7-10, 7-11, 7-14, 7-15, 7-19, 7-20, 7-21, 7-

34, 7-35, 7-38, 7-40, 7-46, 7-53, 7-55, 7-57, 7-58, 7-62Griffin v Wisconsin, 483 US 868 (1987) 7-10, 7-20, 7-21, 7-44

HHanlon v Civil Serv Comm’n, 253 Mich App 710 (2002) 7-9

IIn re Cobos, 326 Mich 537 (1950) 7-38In re Gault, 387 US 1 (1967) 7-36, 7-45In re Madison, 142 Mich App 216 (1985) 7-77

Michigan Judicial Institute © 2013 TOA: Cases - 1

Table of Authorities: CasesMonograph 7: Probation Revocation—Fourth Edition

In re Parole of Hill, ___ Mich App ___ (2012) 7-9, 7-14

JJohnson v United States, 529 US 694 (2000) 7-63

KKampf v Kampf, 237 Mich App 377 (1999) 7-9

MMempa v Rhay, 389 US 128 (1967) 7-14, 7-15Minnesota v Murphy, 465 US 420 (1984) 7-57Morrissey v Brewer, 408 US 471 (1972) 7-9, 7-10, 7-11, 7-19, 7-23, 7-53, 7-55, 7-57

NNichols v United States, 511 US 738 (1994) 7-18North Carolina v Pearce, 395 US 711 (1969) 7-65

PPennsylvania Bd of Probation & Parole v Scott, 524 US 357 (1998) 7-21, 7-58People v Adams, 411 Mich 1070 (1981) 7-38, 7-46, 7-49People v Alame, 129 Mich App 686 (1983) 7-49, 7-50, 7-51People v Anderson (Donny), 398 Mich 361 (1976) 7-16People v Anderson (Robert), 209 Mich App 527 (1995) 7-58People v Babcock, 469 Mich 247 (2003) 7-77People v Baines, 83 Mich App 570 (1978) 7-24People v Baker, 120 Mich App 89 (1982) 7-26, 7-60People v Banks, 116 Mich App 446 (1982) 7-60People v Baugh, 127 Mich App 245 (1983) 7-52People v Belanger, 227 Mich App 637 (1998) 7-10, 7-15, 7-16, 7-46, 7-49People v Bell, 67 Mich App 351 (1976) 7-36, 7-37, 7-39People v Bobo, 390 Mich 355 (1973) 7-57People v Branson, 138 Mich App 455 (1984) 7-28People v Breeding, 284 Mich App 471 (2009) 7-9, 7-10, 7-19, 7-54, 7-55, 7-56, 7-57, 7-

59, 7-77People v Britt, 202 Mich App 714 (1993) 7-31, 7-69People v Broadnax, 98 Mich App 338 (1980) 7-37, 7-39, 7-45People v Brown (Charles), 17 Mich App 396 (1969) 7-15People v Bruce, 102 Mich App 573 (1980) 7-28People v Buckner, 103 Mich App 301 (1980) 7-24, 7-59People v Buelow, 94 Mich App 46 (1979) 7-23People v Burks, 220 Mich App 253 (1996) 7-63People v Cammon, 61 Mich App 315 (1975) 7-35

TOA: Cases - 2 Michigan Judicial Institute © 2013


People v Church, 475 Mich 865 (2006) 7-64People v Clements, 72 Mich App 500 (1976) 7-52, 7-62People v Clemons (Alvin), 116 Mich App 601 (1981) 7-40People v Clemons (Kenneth), 407 Mich 939 (1979) 7-40People v Collins (Harold), 388 Mich 680 (1972) 7-33People v Collins (Malcolm), 25 Mich App 609 (1970) 7-40People v Collins (Richard), 239 Mich App 125 (1999) 7-26, 7-60People v Cosby, 189 Mich App 461 (1991) 7-78People v Councell, 194 Mich App 192 (1992) 7-38, 7-45People v Courtney, 104 Mich App 454 (1981) 7-18People v Crook, 123 Mich App 500 (1983) 7-67People v Diamond (Diamond I), 59 Mich App 581 (1975) 7-33, 7-34, 7-43People v Duncan, 154 Mich App 652 (1986) 7-37, 7-39People v Ealey, 411 Mich 987 (1981) 7-38, 7-46, 7-49People v Edwards, 125 Mich App 831 (1983) 7-35, 7-38, 7-39, 7-46, 7-49People v Elbert, 21 Mich App 677 (1970) 7-30, 7-38People v Farmer, 193 Mich App 400 (1992) 7-42People v Ford, 410 Mich 902 (1981) 7-26People v Foy, 124 Mich App 107 (1983) 7-68People v Gaudett, 77 Mich App 496 (1977) 7-39People v Gauntlett, 134 Mich App 737 (1984) 7-28, 7-29People v Gauntlett, 419 Mich 909 (1984) 7-77People v George, 318 Mich 329 (1947) 7-29, 7-30, 7-36, 7-60People v Gillam, 479 Mich 253 (2007) 7-30People v Gillman, 71 Mich App 374 (1976) 7-36People v Givans, 227 Mich App 113 (1997) 7-65People v Givens, 82 Mich App 336 (1978) 7-38People v Glass, 288 Mich App 399 (2010) 7-32, 7-33People v Glenn-Powers, 296 Mich App 494 (2012) 7-9, 7-21, 7-44People v Gorzen, 126 Mich App 464 (1983) 7-50People v Graber, 128 Mich App 185 (1983) 7-17People v Grazhidani, 277 Mich App 592 (2008) 7-66People v Gulley, 66 Mich App 112 (1975) 7-15, 7-16, 7-36, 7-39, 7-45, 7-46People v Hall, 138 Mich App 86 (1984) 7-35, 7-51, 7-60People v Hanson, 178 Mich App 507 (1989) 7-37, 7-45People v Hardenbrook, 68 Mich App 640 (1976) 7-21, 7-57, 7-58People v Hardy, 212 Mich App 318 (1995) 7-64People v Harper, 479 Mich 599 (2007) 7-9, 7-19, 7-41, 7-54People v Harrison, 119 Mich App 491 (1982) 7-69People v Hart, 129 Mich App 669 (1983) 7-68People v Hemphill, 439 Mich 576 (1992) 7-68People v Hendrick, 472 Mich 555 (2005) 7-35, 7-45, 7-62, 7-63, 7-64People v Henry, 66 Mich App 394 (1976) 7-34People v Higgins, 22 Mich App 479 (1970) 7-28People v Hill (Donald), 69 Mich App 41 (1976) 7-29, 7-36, 7-60People v Hite (After Remand), 200 Mich App 1 (1993) 7-66People v Hodges, 231 Mich 656 (1925) 7-32People v Hunter, 106 Mich App 821 (1981) 7-35, 7-38, 7-45People v Irving, 116 Mich App 147 (1982) 7-13, 7-37, 7-55People v Ison, 132 Mich App 61 (1984) 7-48, 7-51, 7-59People v Jackson (John), 168 Mich App 280 (1988) 7-31



People v Jackson (Leroy), 63 Mich App 241 (1975) 7-12, 7-15People v Johnson (Eddie), 191 Mich App 222 (1991) 7-23, 7-24, 7-53, 7-63People v Johnson (Larry), 210 Mich App 630 (1995) 7-22, 7-28People v Kaczmarek, 464 Mich 478 (2001) 7-63, 7-76, 7-77People v Kitley, 59 Mich App 71 (1975) 7-15, 7-16, 7-50People v Knox, 115 Mich App 508 (1982) 7-56People v Kreigh, 165 Mich App 697 (1988) 7-47, 7-48People v Lawrence, 90 Mich App 73 (1979) 7-36, 7-37, 7-39People v Lemon, 80 Mich App 737 (1978) 7-26, 7-27People v Likine, 492 Mich 367 (2012) 7-26People v Longmier, 114 Mich App 351 (1982) 7-61People v Malkowski, 385 Mich 244 (1971) 7-69People v Malone, 177 Mich App 393 (1989) 7-64People v Manser, 172 Mich App 485 (1988) 7-40, 7-57People v Marks, 340 Mich 495 (1954) 7-31, 7-32People v Martin, 61 Mich App 102 (1975) 7-51People v Maxson, 163 Mich App 467 (1987) 7-63People v McCullough, 462 Mich 857 (2000) 7-52People v McDonald, 411 Mich 870 (1981) 7-38People v McDonald, 97 Mich App 425 (1980) 7-38People v McIntosh, 124 Mich App 705 (1983) 7-40People v McKinnie, 197 Mich App 458 (1992) 7-17People v McNeil, 104 Mich App 24 (1981) 7-36, 7-37, 7-39People v Miller (Buford), 77 Mich App 381 (1977) 7-13, 7-33, 7-34, 7-36, 7-43People v Miller (Loretta), 182 Mich App 711 (1990) 7-28People v Mitchell, 431 Mich 744 (1988) 7-52People v Moore, 121 Mich App 452 (1982) 7-38, 7-39People v Nesbitt, 86 Mich App 128 (1978) 7-41People v New, 427 Mich 482 (1986) 7-34, 7-77People v New, 427 Mich 482, 491 (1986) 7-37People v Ojaniemi, 93 Mich App 200 (1979) 7-36, 7-37, 7-39People v Olah, 409 Mich 948 (1980) 7-18People v Ortman, 209 Mich App 251 (1995) 7-33, 7-34, 7-43People v Pacholka, 451 Mich 896 (1996) 7-25, 7-58People v Perry, 201 Mich App 347 (1993) 7-21, 7-58People v Peters, 191 Mich App 159 (1991) 7-28People v Phillips, 109 Mich App 535 (1981) 7-34People v Pickett, 391 Mich 305 (1974) 7-76People v Pillar, 233 Mich App 267 (1998) 7-19, 7-23, 7-54, 7-55, 7-59, 7-60People v Pippin, 316 Mich 191 (1946) 7-29, 7-30, 7-35, 7-60People v Prieskorn, 424 Mich 327 (1985) 7-65People v Radney, 81 Mich App 303 (1978) 7-36People v Regains, 477 Mich 1038 (2007) 7-34, 7-37, 7-45People v Reichenbach, 459 Mich 109 (1998) 7-18People v Reynolds, 195 Mich App 182 (1992) 7-66People v Rial, 399 Mich 431 (1976) 7-9, 7-10, 7-16People v Richert (After Remand), 216 Mich App 186 (1996) 7-18People v Ritter, 186 Mich App 701 (1991) 7-9, 7-10, 7-16, 7-31, 7-32, 7-33, 7-42, 7-61,

7-77People v Robinson, 203 Mich App 196 (1993) 7-40People v Rocha (After Remand), 99 Mich App 654 (1980) 7-55



People v Rocha, 86 Mich App 497 (1978) 7-25, 7-58People v Schaafsma, 267 Mich App 184 (2005) 7-64People v Sexton (After Remand), 461 Mich 746 (2000) 7-59People v Smith (Carl), 69 Mich App 247 (1976) 7-29People v Spanke, 254 Mich App 642 (2003) 7-69People v Staley, 127 Mich App 38 (1983) 7-57People v Stallworth, 107 Mich App 754 (1981) 7-39People v Steele, 173 Mich App 502 (1988) 7-73People v Sturdivant, 412 Mich 92 (1981) 7-65, 7-66People v Tebedo, 107 Mich App 316 (1981) 7-24, 7-59People v Terrell, 134 Mich App 19 (1984) 7-49People v Triplett, 407 Mich 510 (1980) 7-67People v Valentin, 457 Mich 1 (1998) 7-80People v Van Auker (After Remand), 132 Mich App 394 (1984) 7-40People v Van Auker, 419 Mich 918 (1984) 7-40People v Vaughn, 186 Mich App 376 (1990) 7-59People v Veling, 443 Mich 23 (1993) 7-78People v Wakefield, 46 Mich App 97 (1973) 7-33People v Whiteside, 437 Mich 188 (1991) 7-65, 7-66People v Whyte, 165 Mich App 409 (1988) 7-51People v Williams (Walter), 245 Mich App 427 (2001) 7-78People v Williams (Willie), 186 Mich App 606 (1990) 7-42, 7-47People v Williamson, 413 Mich 895 (1982) 7-40People v Wood, 2 Mich App 342 (1966) 7-35

SSamson v California, 547 US 843 (2006) 7-9, 7-20, 7-53

TTate v Short, 401 US 395 (1971) 7-26, 7-60Townsend v Burke, 334 US 736 (1948) 7-69Triplett v Deputy Warden, Jackson Prison, 142 Mich App 774 (1985) 7-12, 7-21, 7-44

UUnited States v Knights, 534 US 112 (2001) 7-9, 7-20, 7-41, 7-53United States v Twitty, 44 F3d 410 (CA 6, 1995) 7-30United States v Williams, 15 F3d 1356 (CA 6, 1994) 7-30

WWhite-Bey v Dep’t of Corrections, 239 Mich App 221 (2000) 7-75Williams v Hofley Mfg Co, 430 Mich 603 (1988) 7-9Woodard v Custer, 476 Mich 545 (2006) 7-77





Michigan Statutes

MCL 3.1012 7-41MCL 28.721 7-5, 7-25MCL 330.2042 7-65MCL 600.1432 7-56MCL 600.1434 7-56MCL 600.1701(e) 7-75MCL 600.4805(2) 7-75MCL 712A.4 7-78MCL 712A.18(1) 7-80MCL 712A.18i(9) 7-82, 7-83MCL 712A.18i(10) 7-83MCL 712A.18i(11) 7-83MCL 764.15(1) 7-44MCL 764.27a(5) 7-65MCL 768.7b 7-64MCL 769.1 7-25, 7-78MCL 769.1a(2) 7-74MCL 769.1a(11) 7-26, 7-27, 7-60MCL 769.1f 7-26, 7-74MCL 769.1j 7-25, 7-74MCL 769.1j(1) 7-26, 7-74MCL 769.1k 7-74MCL 769.1k(1) 7-25, 7-26, 7-74MCL 769.1k(2) 7-26, 7-74MCL 769.1k(3) 7-26, 7-74, 7-75MCL 769.1k(4) 7-74MCL 769.1k(5) 7-74, 7-75MCL 769.1k(6) 7-74MCL 769.11b 7-65, 7-66MCL 769.34(2) 7-63MCL 769.34(6) 7-73MCL 771.1 7-2, 7-3MCL 771.2 7-31MCL 771.2(1) 7-32MCL 771.2() 7-29, 7-31, 7-32MCL 771.2a 7-31MCL 771.3 7-28

Michigan Judicial Institute © 2013 TOA: MCLs - 1

Table of Authorities: Michigan StatutesMonograph 7: Probation Revocation—Fourth Edition

MCL 771.3(1) 7-22, 7-23, 7-25, 7-30, 7-73, 7-74MCL 771.3(2) 7-22, 7-25MCL 771.3() 7-22, 7-28MCL 771.3(5) 7-25MCL 771.3(6) 7-27MCL 771.3(8) 7-5, 7-26, 7-27, 7-60MCL 771.3c 7-2, 7-3MCL 771.4 7-3, 7-4, 7-12, 7-22, 7-29, 7-30, 7-31, 7-32, 7-34, 7-35, 7-38, 7-39, 7-40, 7-

42, 7-45, 7-46, 7-47, 7-53, 7-56, 7-61, 7-62, 7-63MCL 771.4a 7-3, 7-5, 7-25MCL 771.5 7-3MCL 771.6 7-3MCL 771.7 7-3, 7-5MCL 771.7(1) 7-79, 7-80MCL 771.7(2) 7-80MCL 771.14 7-3, 7-5, 7-67MCL 771.14(2) 7-68, 7-72MCL 771.14(6) 7-68, 7-69MCL 771.14a 7-3, 7-5MCL 771A.1 7-2, 7-5, 7-32, 7-43, 7-44, 7-61, 7-83, 7-86MCL 771A.2(b) 7-83MCL 771A.3 7-32, 7-83, 7-84, 7-86MCL 771A.4(2) 7-83MCL 771A.5(1) 7-32, 7-43, 7-44, 7-61, 7-83, 7-84, 7-86MCL 771A.5(2) 7-85MCL 771A.7 7-85MCL 771A.8 7-86MCL 780.131 7-34, 7-43MCL 780.751 7-71MCL 780.756(2) 7-72MCL 780.763(1) 7-68, 7-72MCL 780.763a(1) 7-71MCL 780.763a(2) 7-72MCL 780.764 7-68, 7-72MCL 780.765 7-72MCL 780.766 7-27, 7-73MCL 780.766(2) 7-74MCL 780.766(10) 7-75MCL 780.766(11) 7-26, 7-27, 7-60, 7-75MCL 780.766(14) 7-27MCL 780.766(18) 7-27MCL 780.766(19) 7-73MCL 780.768b 7-71, 7-73MCL 780.769 7-71, 7-72MCL 780.769(1) 7-72MCL 780.769a 7-71MCL 780.770 7-71, 7-72MCL 780.770a 7-71, 7-72MCL 780.791a 7-71MCL 780.792 7-72MCL 780.793 7-72

TOA: MCLs - 2 Michigan Judicial Institute © 2013


MCL 780.794(19) 7-73MCL 780.795a 7-73MCL 780.824 7-68, 7-72MCL 780.825 7-72MCL 780.826 7-27MCL 780.826(11) 7-26, 7-27, 7-60MCL 780.826(14) 7-27MCL 780.826(15) 7-27MCL 780.826(16) 7-73MCL 780.827b 7-73MCL 780.828a(2) 7-71MCL 780.905 7-25MCL 791.236(19) 7-20MCL 800.33 7-65MCL 801.81 7-25MCL 801.93 7-25

Michigan Judicial Institute © 2013 TOA: MCLs - 3


TOA: MCLs - 4 Michigan Judicial Institute © 2013


Michigan Court Rules

MCR 2.613(B) 7-40MCR 2.630 7-40MCR 3.915(A) 7-81MCR 3.941 7-81MCR 3.942 7-81MCR 3.944(C) 7-81MCR 3.951(A) 7-81MCR 3.951(B) 7-81MCR 3.956(B) 7-81, 7-82, 7-83MCR 6.001 7-40MCR 6.001(A) 7-5MCR 6.001(B) 7-5, 7-18, 7-75MCR 6.005(D) 7-16MCR 6.005(E) 7-7, 7-8, 7-16, 7-17, 7-54, 7-89, 7-90, 7-91MCR 6.103 7-8, 7-42MCR 6.103(A) 7-43MCR 6.103(B) 7-6, 7-41MCR 6.103(C) 7-6, 7-41MCR 6.111(D) 7-47MCR 6.111(E) 7-7, 7-37, 7-47, 7-48MCR 6.403 7-7, 7-8, 7-53, 7-61, 7-90MCR 6.425(B) 7-8, 7-62, 7-66, 7-79, 7-87, 7-89, 7-90, 7-91MCR 6.425(E) 7-8, 7-62, 7-64, 7-68, 7-69, 7-70, 7-73, 7-74, 7-79, 7-87, 7-91MCR 6.440 7-40MCR 6.440(C) 7-40MCR 6.445 7-5, 7-8, 7-12, 7-43, 7-55MCR 6.445(A) 7-8, 7-12, 7-32, 7-41, 7-42, 7-43, 7-44, 7-79MCR 6.445(B) 7-7, 7-14, 7-15, 7-17, 7-35, 7-36, 7-38, 7-44, 7-45, 7-46, 7-48, 7-49, 7-87,

7-88MCR 6.445(C) 7-6, 7-7, 7-13, 7-14, 7-23, 7-45, 7-46, 7-47, 7-48, 7-54, 7-87, 7-88MCR 6.445(D) 7-8, 7-16, 7-17, 7-54, 7-87, 7-89, 7-90, 7-91MCR 6.445(E) 7-8, 7-9, 7-53, 7-55, 7-56, 7-59, 7-61, 7-87, 7-90MCR 6.445(F) 7-37, 7-47, 7-48, 7-49, 7-50, 7-51, 7-52, 7-87, 7-89MCR 6.445(G) 7-8, 7-53, 7-61, 7-62, 7-63, 7-66, 7-68, 7-69, 7-73, 7-76, 7-79, 7-87, 7-89,

7-90, 7-91MCR 6.445(H) 7-13, 7-75, 7-92MCR 6.610 7-18

Michigan Judicial Institute © 2013 TOA: MCRs - 1

Table of Authorities: Michigan Court RulesMonograph 7: Probation Revocation—Fourth Edition

MCR 6.610(F) 7-18, 7-66MCR 6.625(A) 7-76MCR 6.901(B) 7-27, 7-78MCR 6.931(C) 7-78MCR 6.931(F) 7-27, 7-78, 7-79MCR 6.933(A) 7-79MCR 6.933(B) 7-79, 7-80MCR 6.933(D) 7-77MCR 7.103(A) 7-76MCR 7.103(B) 7-76MCR 7.215(C) 7-29

TOA: MCRs - 2 Michigan Judicial Institute © 2013


Michigan Rules of Evidence

MRE 1101 7-55

Michigan Judicial Institute © 2013 TOA: MREs - 1

Table of Authorities: Michigan Rules of EvidenceMonograph 7: Probation Revocation—Fourth Edition

TOA: MREs - 2 Michigan Judicial Institute © 2013

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