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.

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. 

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.