SB-0485, As Passed Senate, December 12, 2007

 

 

 

 

 

 

 

 

 

SUBSTITUTE FOR

 

SENATE BILL NO. 485

 

 

 

 

 

 

 

 

 

 

 

 

 

     A bill to amend 1927 PA 175, entitled

 

"The code of criminal procedure,"

 

by amending section 1 of chapter IX (MCL 769.1), as amended by 1999

 

PA 87.

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

                              CHAPTER IX

 

     Sec. 1. (1) A judge of a court having jurisdiction may

 

pronounce judgment against and pass sentence upon a person

 

convicted of an offense in that court. The sentence shall not

 

exceed the sentence prescribed by law. The court shall sentence a

 

juvenile convicted of any of the following crimes in the same

 

manner as an adult:

 

     (a) Arson of a dwelling in violation of section 72 of the

 

Michigan penal code, 1931 PA 328, MCL 750.72.

 


     (b) Assault with intent to commit murder in violation of

 

section 83 of the Michigan penal code, 1931 PA 328, MCL 750.83.

 

     (c) Assault with intent to maim in violation of section 86 of

 

the Michigan penal code, 1931 PA 328, MCL 750.86.

 

     (d) Attempted murder in violation of section 91 of the

 

Michigan penal code, 1931 PA 328, MCL 750.91.

 

     (e) Conspiracy to commit murder in violation of section 157a

 

of the Michigan penal code, 1931 PA 328, MCL 750.157a.

 

     (f) Solicitation to commit murder in violation of section 157b

 

of the Michigan penal code, 1931 PA 328, MCL 750.157b.

 

     (g) First degree murder in violation of section 316 of the

 

Michigan penal code, 1931 PA 328, MCL 750.316.

 

     (h) Second degree murder in violation of section 317 of the

 

Michigan penal code, 1931 PA 328, MCL 750.317.

 

     (i) Kidnapping in violation of section 349 of the Michigan

 

penal code, 1931 PA 328, MCL 750.349.

 

     (j) First degree criminal sexual conduct in violation of

 

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

 

     (k) Armed robbery in violation of section 529 of the Michigan

 

penal code, 1931 PA 328, MCL 750.529.

 

     (l) Carjacking in violation of section 529a of the Michigan

 

penal code, 1931 PA 328, MCL 750.529a.

 

     (2) A person convicted of a felony or of a misdemeanor

 

punishable by imprisonment for more than 92 days shall not be

 

sentenced until the court has examined the court file and has

 

determined that the person's fingerprints have been taken.

 

     (3) Unless a juvenile is required to be sentenced in the same

 


manner as an adult under subsection (1), a judge of a court having

 

jurisdiction over a juvenile shall conduct a hearing at the

 

juvenile's sentencing to determine if the best interests of the

 

public would be served by placing the juvenile on probation and

 

committing the juvenile to an institution or agency described in

 

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

 

803.309, or by imposing any other sentence provided by law for an

 

adult offender. Except as provided in subsection (5), the court

 

shall sentence the juvenile in the same manner as an adult unless

 

the court determines by a preponderance of the evidence that the

 

interests of the public would be best served by placing the

 

juvenile on probation and committing the juvenile to an institution

 

or agency described in the youth rehabilitation services act, 1974

 

PA 150, MCL 803.301 to 803.309. The rules of evidence do not apply

 

to a hearing under this subsection. In making the determination

 

required under this subsection, the judge shall consider all of the

 

following, giving greater weight to the seriousness of the alleged

 

offense and the juvenile's prior record of delinquency:

 

     (a) The seriousness of the alleged offense in terms of

 

community protection, including, but not limited to, the existence

 

of any aggravating factors recognized by the sentencing guidelines,

 

the use of a firearm or other dangerous weapon, and the impact on

 

any victim.

 

     (b) The juvenile's culpability in committing the alleged

 

offense, including, but not limited to, the level of the juvenile's

 

participation in planning and carrying out the offense and the

 

existence of any aggravating or mitigating factors recognized by

 


the sentencing guidelines.

 

     (c) The juvenile's prior record of delinquency including, but

 

not limited to, any record of detention, any police record, any

 

school record, or any other evidence indicating prior delinquent

 

behavior.

 

     (d) The juvenile's programming history, including, but not

 

limited to, the juvenile's past willingness to participate

 

meaningfully in available programming.

 

     (e) The adequacy of the punishment or programming available in

 

the juvenile justice system.

 

     (f) The dispositional options available for the juvenile.

 

     (4) With the consent of the prosecutor and the defendant, the

 

court may waive the hearing required under subsection (3). If the

 

court waives the hearing required under subsection (3), the court

 

may place the juvenile on probation and commit the juvenile to an

 

institution or agency described in the youth rehabilitation

 

services act, 1974 PA 150, MCL 803.301 to 803.309, but shall not

 

impose any other sentence provided by law for an adult offender.

 

     (5) If a juvenile is convicted of a violation or conspiracy to

 

commit a violation of section 7403(2)(a)(i) of the public health

 

code, 1978 PA 368, MCL 333.7403, the court shall determine whether

 

the best interests of the public would be served by imposing the

 

sentence provided by law for an adult offender, by placing the

 

individual on probation and committing the individual to an

 

institution or agency under subsection (3), or by imposing a

 

sentence of imprisonment for any term of years but not less than 25

 

years. If the court determines by clear and convincing evidence

 


that the best interests of the public would be served by imposing a

 

sentence of imprisonment for any term of years but not less than 25

 

years, the court may impose that sentence. In making its

 

determination, the court shall use the criteria specified in

 

subsection (3).

 

     (6) The court shall state on the record the court's findings

 

of fact and conclusions of law for the probation and commitment

 

decision or sentencing decision made under subsection (3). If a

 

juvenile is committed under subsection (3) to an institution or

 

agency described in the youth rehabilitation services act, 1974 PA

 

150, MCL 803.301 to 803.309, a transcript of the court's findings

 

shall be sent to the family independence agency or county juvenile

 

agency, as applicable.

 

     (7) If a juvenile is committed under subsection (3) or (4) to

 

an institution or agency described in the youth rehabilitation

 

services act, 1974 PA 150, MCL 803.301 to 803.309, the written

 

order of commitment shall contain a provision for the reimbursement

 

to the court by the juvenile or those responsible for the

 

juvenile's support, or both, for the cost of care or service. The

 

amount of reimbursement ordered shall be reasonable, taking into

 

account both the income and resources of the juvenile and those

 

responsible for the juvenile's support. The amount may be based

 

upon the guidelines and model schedule prepared under section 18(6)

 

of chapter XIIA of the probate code of 1939, 1939 PA 288, MCL

 

712A.18. The reimbursement provision applies during the entire

 

period the juvenile remains in care outside the juvenile's own home

 

and under court supervision. The court shall provide for the

 


collection of all amounts ordered to be reimbursed, and the money

 

collected shall be accounted for and reported to the county board

 

of commissioners. Collections to cover delinquent accounts or to

 

pay the balance due on reimbursement orders may be made after a

 

juvenile is released or discharged from care outside the juvenile's

 

own home and under court supervision. Twenty-five percent of all

 

amounts collected pursuant to an order entered under this

 

subsection shall be credited to the appropriate fund of the county

 

to offset the administrative cost of collections. The balance of

 

all amounts collected pursuant to an order entered under this

 

subsection shall be divided in the same ratio in which the county,

 

state, and federal government participate in the cost of care

 

outside the juvenile's own home and under county, state, or court

 

supervision. The court may also collect benefits paid by the

 

government of the United States for the cost of care of the

 

juvenile. Money collected for juveniles placed with or committed to

 

the family independence agency or a county juvenile agency shall be

 

accounted for and reported on an individual basis. In cases of

 

delinquent accounts, the court may also enter an order to intercept

 

state tax refunds or the federal income tax refund of a child,

 

parent, guardian, or custodian and initiate the necessary offset

 

proceedings in order to recover the cost of care or service. The

 

court shall send to the person who is the subject of the intercept

 

order advance written notice of the proposed offset. The notice

 

shall include notice of the opportunity to contest the offset on

 

the grounds that the intercept is not proper because of a mistake

 

of fact concerning the amount of the delinquency or the identity of

 


the person subject to the order. The court shall provide for the

 

prompt reimbursement of an amount withheld in error or an amount

 

found to exceed the delinquent amount.

 

     (8) If the court appoints an attorney to represent a juvenile,

 

an order entered under this section may require the juvenile or

 

person responsible for the juvenile's support, or both, to

 

reimburse the court for attorney fees.

 

     (9) An order directed to a person responsible for the

 

juvenile's support under this section is not binding on the person

 

unless an opportunity for a hearing has been given and until a copy

 

of the order is served on the person, personally or by first-class

 

mail to the person's last known address.

 

     (10) If a juvenile is placed on probation and committed under

 

subsection (3) or (4) to an institution or agency described in the

 

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

 

803.309, the court shall retain jurisdiction over the juvenile

 

while the juvenile is on probation and committed to that

 

institution or agency.

 

     (11) If the court has retained jurisdiction over a juvenile

 

under subsection (10), the court shall conduct an annual review of

 

the services being provided to the juvenile, the juvenile's

 

placement, and the juvenile's progress in that placement. In

 

conducting this review, the court shall examine the juvenile's

 

annual report prepared under section 3 of the juvenile facilities

 

act, 1988 PA 73, MCL 803.223. The court may order changes in the

 

juvenile's placement or treatment plan including, but not limited

 

to, committing the juvenile to the jurisdiction of the department

 


of corrections, based on the review.

 

     (12) If an individual who is under the court's jurisdiction

 

under section 4 of chapter XIIA of the probate code of 1939, 1939

 

PA 288, MCL 712A.4, is convicted of a violation or conspiracy to

 

commit a violation of section 7403(2)(a)(i) of the public health

 

code, 1978 PA 368, MCL 333.7403, the court shall determine whether

 

the best interests of the public would be served by imposing the

 

sentence provided by law for an adult offender or by imposing a

 

sentence of imprisonment for any term of years but not less than 25

 

years. If the court determines by clear and convincing evidence

 

that the best interests of the public would be served by imposing a

 

sentence of imprisonment for any term of years but not less than 25

 

years, the court may impose that sentence. In making its

 

determination, the court shall use the criteria specified in

 

subsection (3) to the extent they apply.

 

     (13) If the defendant is sentenced for an offense other than a

 

listed offense as defined in section 2(d)(i) 2(e)(i) to (ix) (x) and

 

(xi) (xii) to (xiii) of the sex offenders registration act, 1994 PA

 

295, MCL 28.722, the court shall determine if the offense is a

 

violation of a law of this state or a local ordinance of a

 

municipality of this state that by its nature constitutes a sexual

 

offense against an individual who is less than 18 years of age. If

 

so, the conviction is for a listed offense as defined in section

 

2(d)(x) 2(e)(xi) of the sex offenders registration act, 1994 PA 295,

 

MCL 28.722, and the court shall include the basis for that

 

determination on the record and include the determination in the

 

judgment of sentence.

 


     (14) When sentencing a person convicted of a misdemeanor

 

involving the illegal delivery, possession, or use of alcohol or a

 

controlled substance or a felony, the court shall examine the

 

presentence investigation report and determine if the person being

 

sentenced is licensed or registered under article 15 of the public

 

health code, 1978 PA 368, MCL 333.16101 to 333.18838. The court

 

shall also examine the court file and determine if a report of the

 

conviction upon which the person is being sentenced has been

 

forwarded to the department of consumer and industry services as

 

provided in section 16a. If the report has not been forwarded to

 

the department of consumer and industry services, the court shall

 

order the clerk of the court to immediately prepare and forward the

 

report as provided in section 16a.