SENATE BILL No. 454

May 3, 2005, Introduced by Senators GARCIA, GOSCHKA, TOY and KUIPERS and referred to the Committee on Judiciary.

A bill to amend 1931 PA 328, entitled

"The Michigan penal code,"

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

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

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

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

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

property of another person, governmental entity within this state,

or other legal entity fraudulently disposes of or converts to his

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

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

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

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

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

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

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

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

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

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

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

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

misdemeanor punishable by imprisonment for not more than 1 year or

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

or property embezzled, whichever is greater, or both imprisonment

and a fine:

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

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

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

convictions for committing or attempting to commit an offense under

this section or a local ordinance substantially corresponding to

this section.

nonprofit corporation organized under section 501(c)(3) of the

internal revenue code, 26 USC 501.

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

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

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

or property embezzled, whichever is greater, or both imprisonment

and a fine:

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

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

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

more prior convictions for committing or attempting to commit an

offense under this section. For purposes of this subdivision,

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

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

nonprofit corporation organized under section 501(c)(3) of the

internal revenue code, 26 USC 501.

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

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

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

or property embezzled, whichever is greater, or both imprisonment

and a fine:

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

$20,000.00 or more.

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

more prior convictions for committing or attempting to commit an

offense under this section. For purposes of this subdivision,

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

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

nonprofit corporation organized under section 501(c)(3) of the

internal revenue code, 26 USC 501.

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

values of money or personal property embezzled in separate

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

month period may be aggregated to determine the total value of

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

conduct is directed against only 1 person, governmental entity

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

aggregation under this subsection.

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

sentence based upon the defendant having 1 or more prior

convictions, the prosecuting attorney shall include on the

complaint and information a statement listing the prior conviction

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

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

sentencing or at a separate hearing for that purpose before

sentencing. The existence of a prior conviction may be established

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

limited to, 1 or more of the following:

(a) A copy of the judgment of conviction.

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

(d) The defendant's statement.

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

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

custodian to pay, deliver, or refund to his or her principal the

money or property entrusted to his or her care upon demand is prima

facie proof of intent to embezzle.

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

enhanced by 1 or more prior convictions, those prior convictions