“Subject to the requirements of [MCL 771.4b], the court may investigate and enter a disposition of the probationer as the court determines best serves the public interest.” MCL 771.4(5). “If a probation order is revoked, the court may sentence the probationer in the same manner and to the same penalty as the court might have done if the probation order had never been made.” Id.
“If the court finds that the probationer has violated a condition of probation, or if the probationer pleads guilty to a violation, the court may continue probation, modify the conditions of probation, extend the probation period, or revoke probation and impose a sentence of incarceration pursuant to law.” MCR 6.445(G). An eligible probationer may be sentenced to temporary incarceration for a technical probation violation as provided in MCL 771.4b (setting out the procedure for imposing incarceration and the length of the incarceration following a technical probation violation).
However, “[t]he court may not impose a sentence of incarceration or revoke probation” when a probationer acknowledges a technical probation violation under MCR 6.450. MCR 6.450(B). See Section 2.11(B) for more information. “The court may not sentence the probationer to prison without having considered a current presentence report and may not sentence the probationer to prison or jail (including for failing to pay fines, costs, restitution, and other financial obligations imposed by the court) without having complied with the provisions set forth in MCR 6.425(B)[1] and [MCR 6.425(D)].” MCR 6.445(G). See People v Hawkins, 500 Mich 987 (2017) (Michigan Supreme Court vacated the defendant’s sentence and remanded for resentencing where “[t]here [wa]s no indication in the record that, at sentencing, the trial court considered an updated Sentencing Information Report, or applicable guidelines range, in imposing its sentence following the defendant’s probation violations”).
Sentencing guidelines.2 “[T]he [legislative] sentencing guidelines apply to sentence imposed after a probation violation and . . . acts giving rise to the probation violation may constitute substantial and compelling reasons to depart from the guidelines.” People v Hendrick, 472 Mich 555, 557 (2005). MCL 771.4(5) “states that if probation is revoked, the court may sentence the probationer to the same penalty as if probation had never been granted, but does not require that the same penalty be imposed.” Hendrick, 472 Mich at 557 (emphasis in original). “Thus, the sentencing court is not precluded from considering events surrounding the probation violation when sentencing the defendant on the original offense.” Id. Hendrick applies retroactively. People v Parker (Charles), 267 Mich App 319, 328 (2005). However, “the holding in Hendrick is not applicable when probation is [not revoked, but is instead] continued, modified, or extended pursuant to MCR 6.445(G).” People v Malinowski, 301 Mich App 182, 187 (2013).
See also the Michigan Judicial Institute’s probation violation Sentencing Checklist.
1 MCR 6.425(B) concerns disclosure of the presentence report before sentencing.
2 In People v Lockridge, 498 Mich 358, 391 (2015), the Michigan Supreme Court “[struck] down the requirement of a ‘substantial and compelling reason’ to depart from the guidelines range in MCL 769.34(3).” The Lockridge Court additionally stated that “[t]o the extent that any part of MCL 769.34 or another statute refers to use of the sentencing guidelines as mandatory or refers to departures from the guidelines, that part or statute is also severed or struck down as necessary.” Lockridge, 498 Mich at 365 n 1, emphasis supplied. The Lockridge Court did not specifically address intermediate sanctions such as probation.