Enhanced Sentencing – Michigan Habitual Offender
The Michigan habitual offender statutes provide that individuals convicted of ‘a felony, an attempt to commit a felony, or both,’ who subsequently commit another felony, are subject to sentence enhancement. MCL 769.10-769.12. Michigan Criminal Code.
If the prosecutor intends to seek enhancement of sentence, she must file a written notice within 21 days of the arraignment or where waived, 21 days after the information is filed. The notice must include a list of the prior convictions to be used against the defendant, who then can challenge by motion the accuracy and/or constitutional validity. Some misdemeanors are considered felonies for habitual offender purposes as according to MCL 761.10 et seq. and People v. Smith, 423 Mich 427, 444-445 (1985), a two-year misdemeanor may be considered a “felony” for purposes of the habitual offender, probation, and consecutive sentencing provisions of the Code of Criminal Procedure.
Once the deadline has expired, the prosecutor cannot amend the notice to include additional prior convictions according to People v Ellis, 224 Mich App 752.
Caution is required because if the defendant pleads guilty or nolo contendre (no contest) within 21 days of the arraignment, the prosecutor could file the notice AFTER conviction.
If your client is the defendant or you are the defendant and there is a history of felony conviction, be informed before a plea agreement is accepted of the possibility of sentence enhancement as a habitual offender. An attorney should discuss the prosecutor’s intent before any plea agreement is accepted.
Michigan Sentencing Guidelines Manual
This article was originally published on August 8, 2007 and revised and republished on May 7, 2014.
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Can a person be charged twice of habitual charges in the same day????
Habitual Offender is an act of the offense charged. According to the Supreme Court In re Winship, every essential element of the offense charged must be proven beyond a reasonable doubt. The Problem with MCL 769.12 is that it does not allow an impartial ruling. This violates the defendant’s right to a jury trial as an Habitual Offender. Therefore, on its face, it is unconstitutional. The Fourteenth Amendment provides that MCL 769.12 is a law subject to due process or it violates the equal protection of the laws. Whether the offense is an habitual act should be up to the jury.
Dear Ms. Williams:
According to MCR 6.310C, your husband has the right to withdraw his plea within 6 months after he has been sentenced. If the 6 months has lapsed, he can then appeal according to MCR 6.502 which provides for a motion for relief from judgment. Beyond this, he has a right to appeal to the court of appeals under MCR 7.205.
Consider discussing the matter with his court appointed attorney who may then get the process started. You might also consider writing directly to the judge, who will send a copy of your letter to the court appointed attorney. Thereafter a new attorney can be requested.
If your being charged as a habitual offender and you were given a court appointed attorney, but than you decided to hire your own attorney and didnt recieve the information that the state was charging you as a habitual offender within the 21 days, due to the court appointed attorney not passing the information on to your new attorney within the time frame, what actions need to be taken to get the habitual off of the record. My husband didnt find out that he was being charged as a habitual offender until sentencing day.
Dear Gabriel:
If the offense is 10 or more years old, it is not to be considered for purposes of aggravating the sentence as a habitual offender. A prosecutor who finds that you had a record allowing him to aggravate the sentence would provide notice that you would be charged as a habitual offender so that he can increase your sentence.
Can a felony be counted as far back as 1900s for purposes of the Habitual Offender statute. Can a prosecutor count a felony as far back as 1972 and apply that felony with a felony committed in 2005?