Rebuttable Presumption for Misdemeanors

SB 1048 substantially amended criminal sentencing procedure and, importantly, created a rebuttable presumption for non-jail and non-probationary sentences for certain misdemeanors.

The Bill amended MCL 769.5 to provide a rebuttable presumption that the sentencing court will sentence someone convicted of a misdemeanor, other than a serious misdemeanor (as defined elsewhere in the law), to payment of a fine, community service, or other non-jail or non-probation sentence. This presumption substantially reduces the number of persons who can be sentenced to jail or imprisonment for non-violent misdemeanors. The court is, however, granted discretion to depart from the presumptive sentence if it has “reasonable grounds” for doing so.

  1. Rebuttable Presumption for Misdemeanors
  2. Judicial Discretion in Sentencing
  3. Limit on Court of Appeals’ Ability to Overturn a Sentence

Judicial Discretion in Sentencing

As with rebuttable-presumption sentencing, a court may deviate from the general sentencing range for the crime of which the offender was convicted. MCL 769.34(2) now states that for certain felonies, the court “may” (instead of “shall”) impose the minimum sentence included under the sentencing guidelines. The court may depart from the sentencing guidelines if it the departure is reasonable. The court no longer needs a “substantial and compelling reason” for doing so.

Additionally, if the upper limit of the recommended minimum sentence range for an offense is 18 months or less, SB 1048 states that an “intermediate sanction” “shall” rather than “may” be imposed. Such a sanction includes probation or any sanction, other than imprisonment in a county jail (added by SB 1048), state prison, or a state reformatory, that may lawfully be imposed. This includes mental health treatment, community service, a fine, house arrest, and other sanctions rather than imprisonment. The court must order an intermediate sanction unless it has reasonable grounds (rather then a “substantial and compelling reason”) to sentence the offender to incarceration in a county jail for twelve months or less.

Further, if the upper limit of the recommended minimum sentence is greater than 18 months and the lower limit 12 months or less, the court is required, absent a departure, to sentence the offender either to imprisonment for the minimum term or to an intermediate sanction with or without a term of jail incarceration. The Bill deleted the language that allowed a sentence departure to include a term of imprisonment.

  1. Rebuttable Presumption for Misdemeanors
  2. Judicial Discretion in Sentencing
  3. Limit on Court of Appeals’ Ability to Overturn a Sentence

Limit on Court of Appeals’ Ability to Overturn a Sentence

SB 1048 also limits the ability of the court of appeals to overturn a sentence as follows:

If a minimum sentence is within the appropriate guidelines sentence range, the court of appeals shall affirm that sentence and shall not remand for resentencing absent an error in scoring the sentencing guidelines or inaccurate information relied upon in determining the defendant’s sentence. (Emphasis added.)

This language removed the appellate court’s ability to remand for sentencing if it found that the trial court did not have a “substantial and compelling” reason for departing from the appropriate sentence range.

The Bill is significant in that it gives the trial court more power to fashion a sentence that departs from the sentencing guidelines of the Michigan Supreme Court. It creates a rebuttable presumption that those convicted of a misdemeanor be sentenced to a sanction other than jail or imprisonment while giving the court the ability to depart from the rebuttable presumption based on “reasonable grounds.” It states that the court “may” instead of “shall” impose the minimum sentence withing the guidelines of the Michigan Supreme Court, and it can depart from those sentencing guidelines if the departure is “reasonable.”

The trial court’s power to set the sentence of an offender is further bolstered by elimination of the court of appeals’ ability to remand a case for sentencing if the sentence is within the appropriate sentencing guidelines.

Of note is the fact that the Bill does not define “reasonable,” so that whether a court’s rationale for departing from sentencing is “reasonable” is open to interpretation. While a court is required to state its reason on the record, the Bill has no provision allowing appeal of the sentence based on the unreasonableness of the judge’s decision. As stated above, the court of appeals may remand a case only if an error in scoring occurred or the trial court relied on inaccurate information. To learn how Michigan Senate bill 1048 may be able to help you or a loved one, don’t hesitate to reach out to our capable team at Spolin Law for a free consultation.