6.18Imposition of Sentence¹

The trial court is required to state on the record “the sentence being imposed, including the minimum and maximum sentence if applicable, together with any credit for time served to which the defendant is entitled.” MCR 6.425(D)(1)(d).

See also the Michigan Judicial Institute’s Sample Felony Sentencing Guide and—if imposing an out-of-guidelines sentence—the Articulation of Reasons for Out-of-Guidelines Sentence sample form.

A.Minimum and Maximum Prison Sentences

Unless a mandatory sentence is required, the court must state both the minimum and maximum sentence. MCL 769.8; MCL 769.9. The minimum sentence is discretionary, and the maximum sentence is the statutory maximum. People v Maxson, 163 Mich App 467, 471 (1987). Although “sentencing courts [are no longer] bound by the applicable sentencing guidelines range,” they must “continue to consult the applicable guidelines range and take it into account when imposing a sentence,” and they “must justify the sentence imposed in order to facilitate appellate review.” People v Lockridge, 498 Mich 358, 392 (2015), citing People v Coles, 417 Mich 523, 549 (1983), overruled in part on other grounds by People v Milbourn, 435 Mich 630, 644 (1990).²

The minimum sentence cannot be more than two-thirds of the maximum sentence. People v Tanner, 387 Mich 683, 690 (1972). See Section 5.4(A) for a discussion of the Tanner rule.

B.Consecutive and Concurrent Sentences

The court must impose a concurrent sentence unless there is statutory authority for imposing a consecutive sentence. People v Sawyer, 410 Mich 531, 534 (1981). A PSIR must include a statement prepared by the prosecuting attorney regarding whether consecutive sentencing is required or authorized by law. MCL 771.14(2)(d); MCR 6.425(A)(1)(i). The trial court must specify in the judgment of sentence whether the sentence is concurrent or consecutive. MCL 769.1h(1).

See Chapter 7 for a comprehensive discussion of consecutive and concurrent sentences, and for a comprehensive discussion of how to score the guidelines when the defendant is convicted of multiple offenses, see specifically Section 7.2(B).

C.Habitual Offenders

MCL 769.10, MCL 769.11 and MCL 769.12 govern sentencing for habitual offenders. These provisions increase the statutory maximum for offenses depending on the number of the defendant’s prior felony convictions.³ 

See Chapter 4 for a comprehensive discussion of sentencing habitual offenders.

D.Special Sentences

There are several types of sentences that trial courts may impose under certain conditions; for example, delayed sentencing, deferred adjudication of guilt, and special alternative incarceration units. For a detailed discussion of different types of sentences, see Chapter 9.

E.Jail Sentence^4, 5

MCL 750.506 provides for an optional jail sentence for first offenders convicted of felonies (“[w]henever a person shall be convicted of a first offense herein declared to be a felony, punishable by a term of imprisonment for a term of not more than 5 years, the court may instead of imposing the sentence provided, sentence such convicted person to the county jail for a period not to exceed 6 months”).

MCL 801.251(1)(a)-(e) provide that, except as provided in MCL 801.251(3)⁶ and subject to MCL 801.251a,⁷ a person sentenced to a county jail may be granted the privilege of leaving the jail during necessary and reasonable hours for any of the following purposes:

•job seeking;

•working at his or her job;

•conducting his or her own self-employed business or occupation (including housekeeping and caring for the needs of his or her family);

•attending school; and

•obtaining medical treatment, substance abuse treatment, mental health counseling, or psychological counseling.

An individual may petition the court for the privilege of leaving jail as provided in MCL 801.251(1) when he or she is sentenced, and the court has the discretion to renew the individual’s petition. MCL 801.251(2). The court may withdraw the privilege at any time by entering an order to that effect, and notice is not required. Id.

F.Probation

A court may place a defendant on probation under the charge and supervision of a probation officer, if the court determines that a defendant convicted of any crime other than murder, treason, CSC-I, CSC-III, armed robbery, or major controlled substance offenses, is unlikely to engage in an offensive or criminal course of conduct again, and that the public good does not require that the defendant suffer the penalty imposed by law. MCL 771.1(1).

See Section 9.2 for a comprehensive discussion of probation.

G.Fines and Costs

MCL 769.1k generally authorizes a court’s to impose fines and costs. If a defendant pleads guilty or nolo contendere, or the defendant is found guilty following a trial, the court must impose the minimum state costs as set out in MCL 769.1j. MCL 769.1k(1)(a). Under MCL 769.1k(1)(b) and MCL 769.1k(2), the court may also impose:

•any fine authorized by the statute under which the defendant entered a plea or was found guilty;

•any cost authorized by the statute under which the defendant entered a plea or was found guilty;

•any cost “reasonably related to the actual costs incurred by the trial court without separately calculating those costs involved in the particular case”;⁸

•the expenses of providing legal assistance to the defendant;⁹

•any assessment authorized by law;

•reimbursement under MCL 769.1f; and

•any additional costs incurred in compelling the defendant’s appearance.

“The court shall make available to a defendant information about any fine, cost, or assessment imposed under [MCL 769.1k(1).] . . . However, the information is not required to include the calculation of the costs involved in a particular case.” MCL 769.1k(7). “A defendant must not be imprisoned, jailed, or incarcerated for the nonpayment of costs ordered under [MCL 769.1k] unless the court determines that the defendant has the resources to pay the ordered costs and has not made a good-faith effort to do so.” MCL 769.1k(10). See also MCR 6.425(D)(3) (prohibiting the incarceration of a defendant or the revocation of probation for failure to comply with an order to pay money unless the court finds on the record that the defendant can comply without manifest hardship and has not made a good-faith effort to comply). See the Michigan Judicial Institute’s Ability to Pay Benchcard for information on determining a defendant’s ability to pay.

Where defendant “assert[ed] a facial challenge to MCL 769.1k(1)(b)(iii), claiming that the [court] costs [assessed as part of his criminal sentence were] an unconstitutional tax[,]” the Court of Appeals concluded that the costs “[were] a state tax, not a local one, for purposes of the Headlee Amendment.” People v Jones, ___ Mich App ___, ___ (2024). The Headlee Amendment prohibits local government “‘from levying any tax not authorized by law or charter . . . without the approval of a majority of the qualified electors of that unit of Local Government[.]’” Id. at ___, quoting Const 1963, art 9, § 31. “The ultimate purpose of the Headlee Amendment was to place public spending under direct popular control.” Jones, ___ Mich App at ___, quoting Shaw v City of Dearborn, 329 Mich App 640, 652 (2019) (quotation marks omitted). Additionally, “[t]he version of MCL 769.1k(1) in effect at the time of defendant’s sentencing stated, in relevant part, as follows:

“If a defendant enters a plea of guilty or nolo contendere or if the court determines after a hearing or trial that the defendant is guilty, both of the following apply at the time of the sentencing or at the time entry of judgment of guilt is deferred by statute or sentencing is delayed by statute:

                                      * * *

(b) The court may impose any or all of the following:

                                       * * *

(iii) Until October 1, 2022, any cost reasonably related to the actual costs incurred by the trial court without separately calculating those costs involved in the particular case, including, but not limited to, the following:

(A) Salaries and benefits for relevant court personnel.

(B) Goods and services necessary for the operation of the court.

(C) Necessary expenses for the operation and maintenance of court buildings and facilities.” Jones, ___ Mich App at ___, quoting MCL 769.1k(1), as amended by 2020 PA 151.

“[T]he key consideration . . . is which entity—the state or local unit of government—‘imposes or levies the tax in question.’” Jones, ___ Mich App at ___, citing Airlines Parking, Inc, 452 Mich 527, 534 (1996). “This consideration may not always be conclusive, however, because it is at least theoretically possible that the state could levy a tax that was local in character.” Jones, ___ Mich App at ___ (cleaned up). Here, “the court-cost scheme has several characteristics that point to a statewide tax.” Id. at ___ (adopting the analysis set forth by the Michigan Supreme Court in Airlines Parking.

•“First . . . the imposition of court costs depends necessarily on statutory authority provided by our Legislature. The policy of permitting the defrayment of certain costs of local courts with a tax imposed on criminal defendants is one enacted by our statewide legislative body, not a local unit of government.

•Second, although local courts have the discretion whether to impose costs or not, if they decide to do so, then they must do so according to the statutory condition that the imposed costs be reasonably related to the actual costs incurred by the trial court. In other words, local courts do not have unfettered discretion to impose any costs imaginable.

•Third and relatedly, a separate statewide body, the State Court Administrative Office, has developed a recommended formula for local courts to use when imposing costs in a criminal sentencing.

•Fourth, [the Michigan] Legislature has statutorily directed how local courts must distribute monies collected from a criminal defendant, e.g., victim payments, defrayment of costs, etc.

•Fifth, the authority to impose these costs can be stripped at any time by [the] Legislature and, indeed, the current authorization will sunset in 2026.

•Sixth and finally, in contrast to Airline Parking’s future hypothetical airport that arguably meant that the tax had an intended statewide reach, the authorization for local courts to impose costs on criminal defendants has a current actual benefit to courts across the state. There is nothing in the statutory authorization that restricts the tax to certain isolated parts of the state; rather, courts across the state can participate in this program.” Jones, ___ Mich App at ___ (cleaned up).

“The funds collected do benefit local courts, those courts have the discretion whether to collect them or not, and the funds collected remain in the hands of local units of government, not the state.” Id. at ___. However, “in all other material respects, the imposition of court costs reflects a state policy, they have a statewide effect, and they are subject to state-imposed restrictions and requirements.” Id. at ___.

See Chapter 8 for a comprehensive discussion of fines and costs. See the Michigan Judicial Institute’s Table of General Costs for a list of generally-applicable cost provisions and the categories of offenses to which they apply. For specific cost provisions applicable to individual criminal offenses, see the Michigan Judicial Institute’s Table of Felony Costs and Table of Misdemeanor Costs.

H.Restitution¹⁰

Victims have a constitutional right to restitution. Const 1963, art 1, § 24. Additionally, restitution is mandatory under the Crime Victim’s Rights Act (CVRA), MCL 780.751 et seq., and Michigan’s general restitution statute, MCL 769.1a. See People v Garrison, 495 Mich 362, 365 (2014). The sentencing court must, on the record, “order that the defendant make full restitution as required by law to any victim of the defendant’s course of conduct that gives rise to the conviction, or to that victim’s estate.” MCR 6.425(D)(1)(f); see also MCL 769.1a(2); MCL 780.766(2) (felony article); MCL 780.794(2) (juvenile article); MCL 780.826(2) (serious misdemeanor article).¹¹ “[B]oth [the CVRA¹² and MCL 769.1a(2)] impose a duty on sentencing courts to order defendants to pay restitution that is maximal and complete.” Garrison, 495 Mich at 368 (noting that “the plain meaning of the word ‘full’ is ‘complete; entire; maximum’”) (citation omitted).

During sentencing, the court must specifically “order the dollar amount of restitution that the defendant must pay to make full restitution as required by law to any victim or the defendant’s course of conduct that gives rise to the conviction, or to that victim’s estate.” MCR 6.425(D)(1)(f). See also MCR 6.610(G)(1)(e) (including the same requirement for proceedings in district court).

“Any dispute as to the proper amount or type of restitution shall be resolved by the court by a preponderance of the evidence. The burden of demonstrating the amount of the loss sustained by a victim as a result of the offense shall be on the prosecuting attorney.” MCR 6.425(D)(2)(b). See also MCR 6.610(G)(1)(e) (including the same requirement for proceedings in district court).

Because restitution is mandatory, defendants are on notice that it will be part of their sentences. People v Ronowski, 222 Mich App 58, 61 (1997). Restitution is not open to negotiation during the plea-bargaining or sentence-bargaining process. Id. 

“Restitution imposed under MCL 780.766 and MCL 769.1a is not criminal punishment, and so its imposition on defendant does not violate constitutional ex post facto protections.” People v Neilly, ___ Mich ___, ___ (2024). Here, “defendant argued that because restitution was ordered under the current restitution statutes rather than the previous version of the restitution statutes that were in effect when he committed his crimes, the trial court had improperly increased the punishment for his crimes.” Id. at ___. “Among other differences, the former restitution statutes provided that the imposition of restitution was discretionary, rather than mandatory, as the restitution statutes now provide.” Id. at ___.

Using the nonexhaustive Mendoza-Martinez factors, the Court considered:

“’Whether the sanction involves an affirmative disability or restraint, whether it has historically been regarded as a punishment, whether it comes into play only on a finding of scienter, whether its operation will promote the traditional aims of punishment—retribution and deterrence, whether the behavior to which it applies is already a crime, whether an alternative purpose to which it may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned.’” Neilly, ___ Mich at ___, quoting Kennedy v Mendoza-Martinez, 372 US 144, 168-169 (1963).

The Court noted that

•restitution “‘has been considered an equitable, remedial measure designed to prevent the unjust enrichment of wrongdoers[.]’” Neilly, ___ Mich at ___.

•“while the restitution statutes pose a potential affirmative restraint of imprisonment, they also significantly narrow the circumstances in which imprisonment may be imposed.” Id. at ___.

•the third and fourth Mendoza-Martinez factors carried little weight in its analysis. Id. at ___.

•“as with the deterrent effect of the restitution statutes, the retributive effect of the restitution statutes is also minimal.” Id. at ___.

•by mandating compensation, the statutes clearly have a rational connection to the nonpunitive purpose of compensating victims for losses sustained because of a defendant’s conduct. Id. at ___.

•“[b]ecause the amount recoverable is limited to certain types of harm suffered and certain categories of victims and because the amount is tailored to the specific injury caused by the specific defendant, the restitution statutes are not applied excessively.” Id. at ___.

Additionally, the Court noted that “although the restitution statutes impose some affirmative disability and are connected to criminal activity, a majority of the Mendoza-Martinez factors support a conclusion that the punitive effect of the restitution statutes is minimal.” Neilly, ___ Mich at ___. Thus, “because restitution is a civil remedy and not punishment,” the Michigan Supreme Court held that the trial court did not violate “federal and state constitutional prohibitions on ex post facto laws when, during defendant’s resentencing proceedings, it ordered defendant to pay restitution pursuant to the current restitution statutes rather than the statutes in effect at the time of defendant’s crimes.” Id. at ___.

MCR 6.430 governs postjudgment motions to amend restitution in both felony and misdemeanor cases. See MCR 6.001(A)-(B). For a discussion of MCR 6.430, see the Michigan Judicial Institute’s Criminal Proceedings Benchbook, Vol. 3, Chapter 1.