Written by attorney Loren M. Dickstein

Jail or Prison Do Not Have to Result from a Violation of Probation

As a criminal defense attorney, I represent clients on violations of probation (VOP) in misdemeanor and felony cases throughout Michigan. I appear on probation violations frequently in Oakland County, Macomb County, Wayne County, Livingston County, Washtenaw County and Southeastern Michigan in general. In any violation of probation, the defendant faces a sentence at the maximum possible sentence that could have been given on the original charge. For example, a violation on a 1 year misdemeanor can result in a sentence of up to 1 year in jail. If the original charge was a felony, punishable by up to four years in prison for example, the violator can receive a sentence in prison with a maximum of 4 years. On any prison sentence in Michigan, except those that carry a life maximum, there is always a minimum term that is set by the court as well. A minimum of no greater than 2/3 of the maximum is the highest the sentencing judge can go. The 2/3 rule is complicated so let me break it down. A prison sentence to a “term of years" means that there is a minimum term in prison in the sentence and a maximum prison term in the sentence, for example, one-to-four years in prison. The bottom number in a term of years prison sentence sets the earliest possible time when a prisoner will be eligible for parole. If the defendant is not released on parole, he or she cannot be kept in prison longer than the maximum. As mentioned above, the rule in Michigan is that the minimum time cannot exceed 2/3 of the maximum time. Sticking with the example of a felony with a four year (48 month) maximum, the highest possible minimum on the sentence would be 2/3 of four years or 32 months, e.g. 32 moths to 48 months. A judge on a violation of probation for a felony is constrained by the Michigan Sentence Guidelines when fashioning a sentence. The sentencing guidelines for the VOP are whatever the sentencing guidelines were for the original offense at the time of the original sentencing. The only way the sentencing judge can exceed the sentencing guidelines is by finding “substantial and compelling reasons." I am regularly amazed in court when I see other criminal defense lawyers or general practice lawyers handling criminal cases and they are not familiar with this limitation.

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