SB-0129, As Passed Senate, June 30, 2005

SUBSTITUTE FOR

SENATE BILL NO. 129

     A bill to amend 1927 PA 175, entitled

"The code of criminal procedure,"

by amending section 2a of chapter XI (MCL 771.2a), as amended by

1998 PA 520.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

CHAPTER XI

     Sec. 2a. (1) The court may place an individual convicted of

violating section 411h of the Michigan penal code, 1931 PA 328, MCL

750.411h, on probation for not more than 5 years. The sentence is

subject to the conditions of probation set forth in section 411h(3)

of the Michigan penal code, 1931 PA 328, MCL 750.400h, and section

3 of this chapter. The probation is subject to revocation for any

Senate Bill No. 129 as amended June 29, 2005

violation of a condition of that probation.

     (2) The court may place an individual convicted of violating

section 411i of the Michigan penal code, 1931 PA 328, MCL 750.411i,

on probation for any term of years, but not less than 5 years. The

sentence is subject to the conditions of probation set forth in

section 411i(4) of the Michigan penal code, 1931 PA 328, MCL

750.411i, and section 3 of this chapter. The probation is subject

to revocation for any violation of a condition of that probation.

     (3) The court shall by order, to be filed or entered in the

cause as the court directs by general rule or in each case, fix and

determine the period and conditions of probation. The order is part

of the record in the cause. The court may amend the order in form

or substance at any time.

     (4)  This section does  Subsections (1), (2), and (3) do not

apply to a juvenile placed on probation and committed under section

1(3) or (4) of chapter IX to an institution or agency described in

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

803.309.

     (5) Except as otherwise provided by law, the court may place

an individual convicted of a listed offense on probation subject to

the requirements of this <<subsection and subsections (6) through (11)>>

for any term of years but not less

than 5 years.

     (6) Except as otherwise provided in subsections (7) to (11),

if an individual is placed on probation under subsection (5), the

court shall order the individual not to do any of the following:

     (a) Reside within a student safety zone.

     (b) Work within a student safety zone.

Senate Bill No. 129 as amended June 29, 2005

     (c) Loiter within a student safety zone.

     (7) The court shall not impose a condition of probation

described in subsection (6)(a) if any of the following apply:

     (a) The individual is <<not more than 19 years of age>>

>> and attends secondary school or postsecondary

school, and resides with his or her parent or guardian.

     (b) The individual was residing within that student safety

zone at the time the amendatory act that added this subdivision was

enacted into law. However, if the individual was residing within

the student safety zone at the time the amendatory act that added

this subdivision was enacted into law, the court shall order the

individual not to initiate or maintain contact with any minors

within that student safety zone. This subdivision does not prohibit

the court from allowing contact with any minors named in the

probation order for good cause shown and as specified in the

probation order.

     (8) An order issued under subsection (6)(a) shall not prohibit

an individual from being a patient in a hospital or hospice that is

located within a student safety zone.

     (9) The court shall not impose a condition of probation

described in subsection (6)(b) if the individual was working within

the student safety zone at the time the amendatory act that added

this subsection was enacted into law. However, if the individual

was working within the student safety zone at the time the

amendatory act that added this subsection was enacted into law, the

court shall order the individual not to initiate or maintain

contact with any minors in the course of his or her employment

Senate Bill No. 129 as amended June 30, 2005

     within that student safety zone. This subsection does not prohibit

the court from allowing contact with any minors named in the

probation order for good cause shown and as specified in the

probation order.

     (10) The court shall not impose a condition of probation

described in subsection (6)(b) if the individual only

intermittently or sporadically enters a student safety zone for

purposes of work. <<IF THE individual intermittently or sporadically

works within a student safety zone, the court shall order the individual not to initiate or maintain contact with any minors in the course of his or her employment within that safety zone.  This subsection does not prohibit the court from allowing contact with any minors named in the probation order for good cause shown and as specified in the probation order.>>

     (11) Subsection (5) does not apply to any of the following:

     (a) An individual who is convicted as a juvenile under section

520b, 520c, or 520d of the Michigan penal code, 1931 PA 328, MCL

750.520b, 750.520c, and 750.520d, of committing, attempting to

commit, or conspiring to commit a violation solely described in

section 520b(1)(a), 520c(1)(a), or 520d(1)(a) of the Michigan penal

code, 1931 PA 328, MCL 750.520b, 750.520c, and 750.520d, if either

of the following applies:

     (i) The individual was under 13 years of age when he or she

committed the offense and is not more than 5 years older than the

victim.

     (ii) The individual was 13 years of age or older but less than

17 years of age when he or she committed the offense and is not

more than 3 years older than the victim.

     (b) An individual who was charged under section 520b, 520c, or

520d of the Michigan penal code, 1931 PA 328, MCL 750.520b,

750.520c, and 750.520d, with committing, attempting to commit, or

conspiring to commit a violation solely described in section

520b(1)(a), 520c(1)(a), or 520d(1)(a) of the Michigan penal code,

1931 PA 328, MCL 750.520b, 750.520c, and 750.520d, and is convicted

as a juvenile of violating, attempting to violate, or conspiring to

violate section 520e or 520g of the Michigan penal code, 1931 PA

328, MCL 750.520e and 750.520g, if either of the following applies:

     (i) The individual was under 13 years of age when he or she

committed the offense and is not more than 5 years older than the

victim.

     (ii) The individual was 13 years of age or older but less than

17 years of age when he or she committed the offense and is not

more than 3 years older than the victim.

     (c) An individual who has successfully completed his or her

probationary period under sections 11 to 15 of chapter II for

committing a listed offense and has been discharged from youthful

trainee status.

     (d) An individual convicted of committing or attempting to

commit a violation solely described in section 520e(1)(a) of the

Michigan penal code, 1931 PA 328, MCL 750.520e, who at the time of

the violation was 17 years of age or older but less than 21 years

of age and who is not more than 5 years older than the victim.

     (12) As used in this section:

     (a) "Listed offense" means that term as defined in section 2

of the sex offenders registration act, 1994 PA 295, MCL 28.722.

     (b) "Loiter" means to remain for a period of time and under

circumstances that a reasonable person would determine is for the

primary purpose of observing or contacting minors.

     (c) "Minor" means an individual less than 16 years of age.

     (d) "School" means a public, private, denominational, or

Senate Bill No. 129 as amended June 29, 2005

parochial school offering developmental kindergarten, kindergarten,

or any grade from 1 through 12. School does not include a home

school.

     (e) "School property" means a building, facility, structure,

or real property owned, leased, or otherwise controlled by a school

to which either of the following applies:

     (i) The building, facility, structure, or real property is used

to impart educational instruction.<< >>

     (ii) The building, facility, structure, or real property is for

use by <<students not more than 19 years of age>> for sports or other

 recreational activities.

     (f) "Student safety zone" means the area that lies 1,000 feet

or less from school property.

     Enacting section 1.  This amendatory act takes effect October

15, 2005.