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.