8.9Payment of Fines, Costs, and Assessments as a Condition of Probation1
The costs authorized by MCL 769.1k(1) and MCL 769.1k(2) are available when a defendant is placed on probation, probation is revoked, or a defendant is discharged from probation. MCL 769.1k(3). Additionally, MCL 771.3—which addresses probation condition requirements—includes mandatory and discretionary payment conditions.
Mandatory payment conditions. Among other requirements not related to payment, a sentence of probation must include:
•if sentenced in circuit court, an order to pay a probation supervision fee,2 MCL 771.3(1)(d);
•an order to pay restitution,3 MCL 771.3(1)(e);
•an order to pay an assessment under MCL 780.905 (crime victim rights),4 MCL 771.3(1)(f); and
•an order to pay the minimum state cost,5 MCL 771.3(1)(g); MCL 769.1j(3).
If costs are ordered under MCL 769.1f, reimbursement must be made a condition of probation. MCL 769.1f(5). See Section 8.10 for discussion of reimbursement to the state or the local unit of government for emergency response and prosecution expenses.
Discretionary payment conditions. A sentence of probation may also include an order that the probationer pay immediately (or within the probation period) any fine imposed, pay any costs “incurred in prosecuting the defendant or providing legal assistance to the defendant and supervision of the probationer,” and pay any assessment other than a crime victim rights assessment under MCL 780.905. MCL 771.3(2)(b)-(d); MCL 771.3(5). Specific limitations and requirements apply to discretionary costs imposed under MCL 771.3(2); see Section 8.9(C).
Fees without electronic monitoring. Unless the court determines the supervised individual is indigent and waives the fee pursuant to MCL 771.3c(2), “the circuit court shall include in each order of probation for a defendant convicted of a crime that the department of corrections collect a probation supervision fee of $30.00 multiplied by the number of months of probation ordered, but not more than 60 months, if a defendant is placed on probation supervision without an electronic monitoring device.” MCL 771.3c(1).
Fees with electronic monitoring. Unless the court determines the supervised individual is indigent and waives the fee pursuant to MCL 771.3c(2), “[i]f a defendant is placed on probation supervision with an electronic monitoring device under this subsection, the circuit court’s order shall include in its order that the department of corrections collect a probation supervision fee of $60.00 multiplied by the number of months of probation ordered, but not more than 60 months.” MCL 771.3c(1).
Regardless of whether electronic monitoring is ordered, “the fee is payable when the probation order is entered, but the fee may be paid in monthly installments if the court approves installment payments for that probationer.” MCL 771.3c(1).
“The fee must be collected as provided . . . MCL 791.225a.” MCL 771.3c(1).
“A person must not be subject to more than 1 supervision fee at the same time. If a supervision fee is ordered for a person for any month or months during which that person already is subject to a supervision fee, the court shall waive the fee having the shorter remaining duration.” MCL 771.3c(1).
“If a person who is subject to a probation supervision fee is also subject to any combination of fines, costs, restitution orders, assessments, or payments arising out of the same criminal proceeding, the allocation of money collected for those obligations must be as otherwise provided in [MCL 775.22].” MCL 771.3c(3).
MCL 771.3c “does not apply to a juvenile placed on probation and committed under . . . MCL 803.301 to [MCL] 803.309.” MCL 771.3c(4).
The court may require a probationer to “[a]gree to pay by wage assignment any restitution, assessment, fine, or cost imposed by the court.” MCL 771.3(2)(f).
“If a probationer is required to pay costs as part of a sentence of probation, the court may require payment to be made immediately or the court may provide for payment to be made within a specified period of time or in specified installments.” MCL 771.3(7).
C.Ordering Discretionary Costs—Issues
“If the court requires the probationer to pay costs under [MCL 771.3(2)], the costs must be limited to expenses specifically incurred in prosecuting the defendant or[6] providing legal assistance to the defendant and supervision of the probationer.” MCL 771.3(5).
For example, a trial court may impose costs to reimburse the prosecution for the expense of engaging an expert witness for trial. People v Brown, 279 Mich App 116, 140 (2008).
Assessments. However, “MCL 771.3(2)(d) does not provide trial courts with the independent authority to impose any assessment as a condition of probation, but rather permits courts to impose only those assessments that are separately authorized by statute.” People v Juntikka, 310 Mich App 306, 313-315 (2015) (holding that “[t]he trial court erred by imposing [a] probation enhancement fee,” which “accounted for general operating costs incurred by the probation department,” because the “fee was not separately authorized by statute[] and . . . was not a cost ‘specifically incurred’ in defendant’s case [as required] under MCL 771.3(5)”) (additional citations omitted).7
Court costs. MCL 771.3(5) does not authorize court costs. People v Butler-Jackson, 499 Mich 963, 963 (2016) (“[t]hough probation supervision costs and reimbursement of expenses incurred in prosecuting the defendant or providing her with legal assistance are authorized under [MCL 771.3(5)], court costs are not”).
2.Ability to Pay Determinations
“If the court imposes costs under [MCL 771.3(2)] as part of a sentence of probation, all of the following apply:
(a) The court shall not require a probationer to pay costs under [MCL 771.3(2)] unless the probationer is or will be able to pay them during the term of probation. In determining the amount and method of payment of costs under [MCL 771.3(2)], the court shall take into account the probationer’s financial resources and the nature of the burden that payment of costs will impose, with due regard to his or her other obligations.
(b) A probationer who is required to pay costs under [MCL 771.3(1)(g) (minimum state cost) or MCL 771.3(2)(c) (expenses specifically incurred in the case)] and who is not in willful default of the payment of the costs may petition the sentencing judge or his or her successor at any time for a remission of the payment of any unpaid portion of those costs. If the court determines that payment of the amount due will impose a manifest hardship on the probationer or his or her immediate family, the court may remit all or part of the amount due in costs or modify the method of payment.” MCL 771.3(6)(a)-(b).
MCL 771.3(6)(a)8 “does not require that a hearing be held to determine whether a defendant, who has not asserted an inability to pay costs, is able to make such payment[.]” Instead, the statute provides that “the court may not require payment unless the probationer is able to pay”; “[t]hus the statute makes a distinction between imposition and payment.” People v Music, 428 Mich 356, 359-360 (1987) (quotation marks and citation omitted). See also People v Jackson, 483 Mich 271, 291 (2009) (an ability to pay determination “is only required at the time payment is required, i.e., when the imposition is enforced”), citing Music, 428 Mich at 360. If the probationer “timely asserts an inability to pay,” the trial court is required to hear the challenge and determine whether the costs are within the probationer’s means. Music, 428 Mich at 362 (citation omitted).
A trial court may consider a defendant’s potential for employment when determining the defendant’s ability to pay. People v Brown, 279 Mich App 116, 139-140 (2008). Where the defendant opted to attend school full-time instead of working full-time, the trial court concluded that the defendant could pay if he chose to do so and properly imposed costs under MCL 771.3. Brown, 279 Mich App at 139-140.
Ability to pay must also be considered before revoking probation for failure to meet payment obligations. See MCL 771.3(8). See Section 8.9(F).
Except for defendants convicted of first- or third-degree criminal sexual conduct, MCL 769.3(2) authorizes a sentencing court to sentence a defendant to probation, conditioned on the probationer’s payment of costs, among other things. The court may establish a time within which the defendant must make repayment in installments, and if the probationer defaults on any payment, the court may sentence him or her to the sentence provided by law. Id.9
2.Deferred or Delayed Judgment in Circuit Court
“If entry of judgment is deferred in the circuit court, the court shall require the individual to pay a supervision fee in the same manner as is prescribed for a delayed sentence under [MCL 771.1(3)], shall require the individual to pay the minimum state costs prescribed by [MCL 769.1j (minimum state costs)], and may impose, as applicable, the conditions of probation described in subsection (1), and subject to subsection (11), the conditions of probation described in subsections (2) and (3).” MCL 771.3(9).
3.Deferred or Delayed Judgment in District or Municipal Court
“If sentencing is delayed or entry of judgment is deferred in the district court or in a municipal court, the court shall require the individual to pay the minimum state costs prescribed by [MCL 769.1j] and may impose, as applicable, the conditions of probation described in subsection (1), and subject to subsection (11), the conditions of probation described in subsections (2) and (3).” MCL 771.3(10).
E.Cost of Electronic Monitoring
A probationer who is permitted to be released from jail for purposes of attending work or school under MCL 771.3(2)(a) and who is ordered to wear an electronic monitoring device under MCL 771.3e must pay for the installation, maintenance, monitoring, and removal of the device. MCL 771.3e(1).
F.Probation Revocation10
Compliance with a court’s order to pay costs must be made a condition of probation. MCL 771.3(8). Subject to MCL 771.4b,11 “the court may only sanction a probationer to jail or revoke the probation of a probationer who fails to comply with the order if the probationer has the ability to pay and has not made a good-faith effort to comply with the order.” MCL 771.3(8). To determine whether an individual’s probation should be revoked on the basis of unpaid costs, the court must consider the following:
•the probationer’s employment status, earning ability, and financial resources;
•the willfulness of the probationer’s failure to pay; and
•any other circumstances that may impact the probationer’s ability to pay. MCL 771.3(8).12
See also MCL 769.1f(5) (discussing probation revocation for failure to reimburse the state or a local unit of government for expenses incurred in relation to the crime, including emergency response and prosecution). The revocation procedure under MCL 769.1f(5) is substantially similar to MCL 771.3(8); however, it additionally instructs the court to also consider the probationer’s number of dependents. MCL 769.1f(5).
Further, “[t]he 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) [(governing presentence investigation reports)] and [MCR 6.425(D) (governing sentencing procedure)].” MCR 6.445(G). MCR 6.425(D)(3) requires the court to make a finding that the defendant is able to comply with the order without manifest hardship and that he or she has not made a good-faith effort to comply before revoking probation for failure to comply with an order to pay money. See Section 8.4 for discussion of MCR 6.425(D)(3) and a defendant’s ability to pay court-ordered financial obligations.
1 See Chapter 9 for more information on probation.
2 Discussed in Section 8.9(A).
3 Discussed in Section 8.12.
4 Under MCL 780.905, the court must “order each person charged with an offense that is a felony, misdemeanor, or ordinance violation that is resolved by conviction, assignment of the defendant to youthful trainee status, a delayed sentence or deferred entry of judgment of guilt, or in another way that is not an acquittal or unconditional dismissal, to pay an assessment” of $130.00 if the offense is a felony or $75.00 if the offense is a misdemeanor or ordinance violation. MCL 780.905(1)(a)-(b). The crime victim rights assessment cannot be waived. See id. In contrast to the minimum state cost, which may be ordered for each conviction arising from a single case, only one crime victim assessment per criminal case may be ordered, even when the case involves multiple offenses. MCL 780.905(2). See also the SCAO Crime Victim Assessment and Minimum State Cost Charts.
5 Discussed in Section 8.11.
6 In People v Humphreys, 221 Mich App 443, 452 (1997), the Court of Appeals held that “the Legislature intended the ‘or’ in [former MCL 771.3(4), now MCL 771.3(5),] to mean ‘and,’” and, therefore, that “the trial court properly ordered defendant to pay those costs relating to both the prosecution and the defense of his case.”
7 Similarly, the Juvenile Code does not authorize the imposition, in a delinquency proceeding, of a flat-rate probation supervision fee that does not take into account the actual costs expended on a specific juvenile. In re Killich, 319 Mich App 331, 342-343 (2017) (citing Juntikka, 310 Mich App at 308-309, 314, and holding that a flat-rate $100 probation supervision fee was not authorized under MCL 712A.18). See the Michigan Judicial Institute’s Juvenile Justice Benchbook, Chapter 18, for discussion of the imposition of costs in juvenile proceedings.
8 Formerly MCL 771.3(5)(a). At the time Music was decided, MCL 771.3(5)(a) addressed restitution in addition to costs. That provision has since been amended, both substantively and ministerially. However, the amendments did not add a specific hearing requirement. Accordingly, it does not appear that the Music analysis was impacted by the subsequent amendments to MCL 771.3.
9 Note, however, that before sentencing a defendant to a term of incarceration, or revoking probation, for failure to comply with an order to pay money, the court must make a finding that the defendant is able to comply with the order without manifest hardship and that he or she has not made a good-faith effort to comply. MCR 6.425(D)(3). See Section 8.4 for discussion of MCR 6.425(D)(3) and a defendant’s ability to pay court-ordered financial obligations.
10 See Chapter 9 for more information on probation revocation.
11 Technical probation violations are addressed by MCL 771.4b; this is not specific to revocation for failure to pay. Probation is discussed in detail in Chapter 9.
12 These proceedings are in addition to the proceedings provided in MCL 771.4, which are not specific to revocation for failure to pay. Probation is discussed in detail in Chapter 9.