2.4Ten-Year Gap Requirement for Prior Convictions and Adjudications
MCL 777.50 proscribes using a conviction or a juvenile adjudication when scoring PRVs 1 through 5 if discharge from the conviction or adjudication occurred more than 10 years before commission of the sentencing offense. Specifically, MCL 777.50(1) states:
“In scoring prior record variables 1 to 5, do not use any conviction or juvenile adjudication that precedes a period of 10 or more years between the discharge date from a conviction or juvenile adjudication and the defendant’s commission of the next offense resulting in a conviction or juvenile adjudication.”
To apply MCL 777.50(1), determine the length of time between the discharge date of the conviction or juvenile adjudication immediately preceding the commission date of the sentencing offense. If the time span is 10 years or more, that conviction or juvenile adjudication—and any convictions or adjudications that occurred earlier—must not be counted when scoring the offender’s PRVs. MCL 777.50(2). If the time span between the commission date of the offender’s sentencing offense and the discharge date of the offender’s most recent conviction or juvenile adjudication is less than 10 years, that prior conviction or adjudication must be counted in scoring the offender’s PRVs. Id. Continue the process of determining the length of time between the discharge date of each conviction or juvenile adjudication and the commission date of the next conviction or adjudication “until a period of 10 or more years is found or no prior convictions or juvenile adjudications remain.” Id.
“If a discharge date is not available, add either the time defendant was sentenced to probation or the length of the minimum incarceration term to the date of the conviction and use that date as the discharge date.” MCL 777.50(3). Note that the date the defendant was convicted controls; not the date the defendant was sentenced. See id.
C.Any Prior Conviction Counts Under the 10-Year-Gap Rule
“[A] prior conviction that is not otherwise scorable under the prior record variables (PRVs) of the sentencing guidelines may, nevertheless, be considered in applying the so-called ‘10-year gap’ rule of MCL 777.50.” People v Butler, 315 Mich App 546, 547-548, 550 (2016) (rejecting the defendant’s argument that “only offenses scorable under MCL 777.55 [(PRV 5)] may be considered in applying the 10-year-gap rule under MCL 777.50 in determining which offenses may be scored under PRV 5”). While MCL 777.50 and MCL 777.55 “serve a common purpose by limiting what prior convictions may be considered, the limitations are different, and the underlying purpose of each respective limitation is obviously different as well.” Butler, 315 Mich App at 551. “[T]he provisions of MCL 777.55, along with MCL 777.51 through MCL 777.54, consider the nature of the defendant’s prior crimes, whether they are worthy of being scored under the sentencing guidelines, and points are to be assessed based on the number and severity of those offenses,” while “MCL 777.50, on the other hand, addresses the question whether a defendant’s prior criminal history should be considered at all because of a period of time spent as a law-abiding citizen.” Butler, 315 Mich App at 552. “In making this judgment, the Legislature, not unreasonably, insisted that the 10-year conviction-free period be . . . free of any convictions, even ones that would not themselves be scorable under the PRVs.” Id.