MCL 771.1(1) details the offenses for which a defendant may be sentenced to probation:
“In all prosecutions for felonies or misdemeanors, or ordinance violations other tha n murder, treason, criminal sexual conduct in the first or third degree, armed robbery, or major controlled substance offenses , if the defendant has been found guilty upon verdict or plea and the court determines that the defendant is not likely again to engage in an offensive or criminal course of conduct and that the public good does not require that the defendant suffer the penalty imposed by law, the court may place the defendant on probation under the charge and supervision of a probation officer.”
When a court sentences a defendant to probation, the court must, in a court order entered in the case and made part of the record, set the length of the probationary period, determine the terms on which the probation is conditioned, and the rehabilitation goals. MCL 771.2(11) . Mandatory conditions of probation are listed in MCL 771.3(1)(a)-(h) . See MCL 771.2(12) . Discretionary conditions of probation are found in MCL 771.3(2)(a)-(q) and MCL 771.3(3) . Probation conditions “must be individually tailored to the probationer, must specifically address the assessed risks and needs of the probationer, must be designed to reduce recidivism, and must be adjusted if the court determines adjustments are appropriate.” MCL 771.3(11) . A sentencing court has discretion to alter the form or substance of an order of probation at any time during the probationary term. MCL 771.2(11) . “[A] defendant may decline a sentence of probation and instead seek a sentence of incarceration.” People v Bensch , 328 Mich App 1, 13 (2019). See also MCL 771.4(1) (“the granting of probation is a matter of grace requiring the agreement of the probationer to its granting and continuance”).
A. Length of Probation
Except as provided in MCL 771.2a and MCL 768.36 , which address probation periods for stalking and child abuse offenses, the term of probation imposed on a defendant convicted of a felony offense must not exceed three years. MCL 771.2(1) . A felony probation term may be extended up to two times for not more than one additional year each time “if the court finds that there is a specific rehabilitation goal that has not yet been achieved, or a specific articulable, and ongoing risk of harm to a victim that can be mitigated only with continued probation supervision.” Id. “Felony” in cludes two-year misdemeanors. MCL 761.1(f) ; People v Smith (Timothy) , 423 Mich 427, 434 (1985). The term of probation imposed on a defendant convicted of an offense that is not a felony must not exceed two years. MCL 771.2(1) .
“Except as provided in [ MCL 771.2(10) , 2 MCL 771.2a , and MCL 768.36 ], after the defendant has completed 1/2 of the original felony or misdemeanor probation period, he or she may be eligible for early discharge as provided in this section. The defendant must be notified at sentencing of his or her eligibility and the requirements for early discharge from probation, and the procedure provided under [ MCL 771.2(3) ] to notify the court of his or her eligibility.” MCL 771.2(2) . A probationer’s inability to pay required fines, fees, or costs does not render the probationer ineligible for early discharge if he or she has made a good-faith effort to make payments. MCL 771.2(4) . However, the probationer is still obligated to make court-ordered payments after discharge from probation. Id.
MCL 771.2(3) and MCL 771.2(5) through MCL 771.2(8) set out the procedures for notification of eligibility for early discharge and the court’s review and determination of whether to grant early discharge. For a detailed discussion of early discharge from probation, see the Michigan Judicial Institute’s Criminal Proceedings Benchbook, Vol 2 , Chapter 9.
If the court reduces a defendant’s probationary term under MCL 771.2 , the reduction must be reported to the Department of Corrections. MCL 771.2(11) .
B. Lifetime Probation
The “lifetime probation” provision in former MCL 771.1(4) was eliminated effective March 1, 2003. 3 Prior to the amendment, a trial court could sentence a defendant to lifetime probation for violating or conspiring to violate MCL 333.7401(2)(a)( iv ) or MCL 333.7403(2)(a)( iv ) .
Offenders placed on lifetime probation before March 1, 2003, for offenses committed before March 1, 2003, are subject to the conditions of probation set out in MCL 771.3 . MCL 771.2(12) . MCL 771.2(12) continues to prohibit any reduction in the probation period imposed under MCL 771.1(4) as it existed before March 1, 2003 “other than by a revocation that results in imprisonment or as otherwise provided by law.”
MCL 333.7401 extends a provision relating to the discharge of lifetime probation to a person sentenced to lifetime probation under MCL 333.7401(2)(a)( iv ) before March 1, 2003. MCL 333.7401(4) states:
“If an individual was sentenced to lifetime probation under [ MCL 333.7401](2)(a)( iv ) as it existed before March 1, 2003 and the individual has served 5 or more years of that probationary period, the probation officer for that individual may recommend to the court that the court discharge the individual from probation. If an individual’s probation officer does not recommend discharge as provided in this subsection, with notice to the prosecutor, the individual may petition the court seeking resentencing under the court rules. The court may discharge an individual from probation as provided in this subsection. An individual may file more than 1 motion seeking resentencing under this subsection.”
C. Revoking Probation
“All probation orders are revocable subject to the requirements of [ MCL 771.4b ], but revocation of probation, and subsequent incarceration, should be imposed only for repeated technical violations, for new criminal behavior, as otherwise allowed in [ MCL 771.4b ], or upon request of the probationer.” MCL 771.4(2) . 4 MCL 771.4b addresses incarceration for technical probation violations . Generally, “the court shall not revoke probation on the basis of a technical probation violation unless a probationer has already been sanctioned for 3 or more technical probation violations and commits a new technical probation violation.” MCL 771.4b(4) . 5
A trial court only has jurisdiction to revoke a defendant’s probation and sentence him or her to imprisonment during the probationary period; if the probationary period expires, the trial court loses jurisdiction to revoke probation and impose a prison sentence. People v Glass , 288 Mich App 399, 408-409 (2010).
For a detailed discussion of probation violations and the procedures involved in probation revocation, see the Michigan Judicial Institute’s Criminal Proceedings Benchbook, Vol. 3 , Chapter 2. See also the Michigan Judicial Institute’s checklist describing probation violation sentencing and the Michigan Judicial Institute’s flowchart describing the procedures that apply to probation violations, including sentencing.
D. Termination of the Probation Period
The probation officer must report to the court when a probationer’s term of probation has ended. MCL 771.5(1) . 6 The officer must also inform the court of the probationer’s conduct during the probation period. Id . After receiving the report, the court may discharge the probationer and enter judgment of a suspended sentence, or the court may extend the probationer’s supervision period up to the maximum period of probation permitted. Id .
MCL 771.5 “does not apply to a juvenile placed on probation and committed under [ MCL 769.1(3) or MCL 769.1(4) ] . . . to an institution or agency described in the youth rehabilitations services act, . . . MCL 803.301 to [ MCL] 803.309 .” MCL 771.5(2) .
E. Medical Probation and Compassionate Release
Medical Probation. “Subject to [ MCL 771.3g(4) 7 ], a court may enter an order of probation placing a prisoner on medical probation under the charge and supervision of a probation officer if the court finds that the prisoner requires acute long-term medical treatment or services, or that the prisoner is physically or mentally incapacitated with a medical condition that renders the prisoner unable to perform activities of basic daily living and the prisoner requires 24-hour care.” MCL 771.3g(3) .
Compassionate Release. “Subject to [ MCL 771.3h(3) 8 ], a court may grant compassionate release to a prisoner if the court finds that the prisoner has a life expectancy of not more than 6 months and that the release of the prisoner would not reasonably pose a threat to public safety or the prisoner. If a court grants a prisoner compassionate release, the court shall enter an amended judgment of sentence specifying that the prisoner is released from the term of imprisonment imposed for the offense for which the prisoner was originally convicted.” MCL 771.3h(2) .
For a detailed discussion of medical probation and compassionate release, see the Michigan Judicial Institute’s Criminal Proceedings Benchbook , Vol. 2 , Chapter 9.
1 See the Michigan Judicial Institute’s Criminal Proceedings Benchbook, Vol. 2 , Chapter 9, for detailed information about probation.
2 MCL 771.2(10) provides that a defendant convicted of one or more of the following crimes is not eligible for reduced probation under MCL 771.2 : a domestic violence related violation of MCL 750.81 , MCL 750.81a , an offense involving domestic violence as that term is defined in MCL 400.1501 , a violation of MCL 750.84 , MCL 750.411h , MCL 750.411i , MCL 750.520c , or MCL 750.520e , a listed offense , an offense for which a defense was asserted under MCL 768.36 (insanity and related defenses), or a violation MCL 750.462a to MCL 750.462h or former section MCL 750.462i or MCL 750.462j .
4 The Probation Swift and Sure Sanctions Act, MCL 771A.1 et seq ., establishes a voluntary, grant-funded “state swift and sure sanctions program” for the supervision of participating offenders who have been placed on probation for committing certain felonies. MCL 771A.3 ; see also MCL 771A.2(b) . See Section 10.25 for further discussion of the swift and sure sanctions probation program.
5 There is an exception for certain domestic violence and stalking related convictions. MCL 771.4b(4) ; MCL 771.4b(6) .
6 The statute does not specify the time in which this report must be made.
7 MCL 771.3g(4) lists preconditions that must be satisfied before a prisoner can be placed on medical probation.
8 MCL 771.3h(3) lists preconditions that must be satisfied before a prisoner can be placed on compassionate release.