Probation vs. Jail vs. Delayed Sentence in Michigan

Sentencing is coming, and three words keep coming up

After a plea or a guilty verdict, the judge decides the sentence. Before that day you may hear the words probation, jail and delayed sentence from your lawyer, the prosecutor or the probation officer writing a report. They are not three separate boxes. A judge can combine them: jail can be a condition of probation, and a delayed sentence can end in probation.

This page is general information about Michigan law. It explains what each option is, the limits the statutes set and what happens after a violation. It does not predict what a judge will do, and many offenses carry their own minimum terms or special rules. Talk to a lawyer about your own case.

Probation: supervision in the community

MCL 771.1(1) lets a court place a defendant on probation after a plea or verdict if it finds the defendant is not likely again to engage in an offensive or criminal course of conduct and that the public good does not require the penalty imposed by law. Probation is not available for murder, treason, first- or third-degree criminal sexual conduct, armed robbery or major controlled substance offenses.

Since April 1, 2021, MCL 771.2(1) caps probation at 2 years for an offense that is not a felony and 3 years for a felony. For this statute, "felony" includes any offense punishable by more than 1 year (MCL 761.1(f)). A felony term may be extended up to 2 times, by up to 1 year each, only if the court finds an unmet rehabilitation goal or an ongoing risk of harm to a victim. MCL 771.2a sets different terms for some offenses:

• Stalking: up to 5 years (MCL 771.2a(1)). Aggravated stalking: any term of years, but not less than 5 (MCL 771.2a(2)).
• Misdemeanor child abuse under MCL 750.136b: up to 5 years (MCL 771.2a(3)).
• A "violent felony" as defined in MCL 791.236, a list that includes felonious assault: up to 5 years (MCL 771.2a(4)).
• A listed offense under the sex offenders registration act: any term of years, but not less than 5 (MCL 771.2a(7)).

Conditions, and where jail fits in

Every probation order includes the conditions in MCL 771.3(1): no new crimes, no leaving the state without the court's consent, reporting to the probation officer, and paying restitution and the assessments the statute lists. MCL 771.3(2) lets the judge add others, such as community service, drug or mental health treatment, house arrest, electronic monitoring and conditions to protect a named person. Those added conditions must be individually tailored to the probationer (MCL 771.3(11)).

Jail can be part of probation. MCL 771.3(2)(a) allows up to 12 months in the county jail as a condition, in one block or at intervals, but never more than the offense's own maximum if that is shorter. The court may also permit day parole or release from jail to work or attend school.

Jail can also be the sentence by itself. Under MCL 769.28, a sentence with a maximum of 1 year or less is served in the county jail, not a state prison. For misdemeanors other than a "serious misdemeanor," MCL 769.5(3) creates a rebuttable presumption of a fine, community service or another sentence without jail or probation, and the judge may depart only after stating reasonable grounds on the record (MCL 769.5(4)). The difference between a misdemeanor and a felony is covered in misdemeanor vs. felony.

Delayed sentence: time before the judge decides

A delayed sentence postpones sentencing. MCL 771.1(2) says that in any case where probation is possible, the court may delay sentencing for not more than 1 year to give the defendant a chance to prove eligibility for probation or other leniency. The court must enter an order stating the reason for the delay, and it keeps the power to sentence at any time during the delay.

A delayed sentence comes after guilt is established, and the statute does not promise a dismissal or a reduced charge at the end. What happens then is up to the judge, within whatever the plea agreement provided. It is different from a deferral, where the court proceeds without entering a judgment of guilt, such as the drug deferral in MCL 333.7411 and the domestic violence deferral in MCL 769.4a. Those are explained in diversion, 7411 and deferrals, and the domestic violence guide covers delayed sentences and other negotiated outcomes.

What a violation brings

For probation, the rules changed on April 1, 2021. MCL 771.4b separates technical violations, such as a missed appointment or a failed drug test, from other violations, and caps the jail time for each technical violation, as listed below. If a delayed sentence is not going well, the court keeps the power to sentence you at any time during the delay (MCL 771.1(2)).

If probation is revoked, MCL 771.4(5) lets the court sentence you as if probation had never been ordered. You are entitled to a written copy of the charges and to a revocation hearing (MCL 771.4(4)). The site's probation violations page and the article on probation violations in OWI cases go further.

• Misdemeanor probation: up to 5 days in jail for a first technical violation, 10 for a second and 15 for a third (MCL 771.4b(1)(a)).
• Felony probation: up to 15 days for a first, 30 for a second and 45 for a third (MCL 771.4b(1)(b)).
• The court may not revoke probation for a technical violation unless the probationer has already been sanctioned for 3 or more and commits another (MCL 771.4b(4)).
• Not technical: a new offense, contact with a person the court ordered you not to contact, absconding, or drinking alcohol while on probation for felony OWI (MCL 771.4b(9)(b)).
• The caps do not apply to probation for the domestic violence and stalking offenses named in MCL 771.4b(6).

What to do before sentencing

Gather proof of the things the statutes ask about: steady work, school, treatment you have started, family responsibilities. A judge deciding on probation makes findings about the likelihood of further criminal conduct under MCL 771.1(1), and a delayed sentence exists so the defendant can prove eligibility for leniency. If you are already on probation, keep every appointment and keep records of what you complete.

Rules differ by charge. The articles on probation after an OWI, alternatives to jail in OWI cases and probation in a domestic violence case cover those charges. If the case is not resolved yet, plea vs. trial comes first.

A lawyer can tell you which options the law allows for your charge and record; this page cannot. The office of Attorney Shawn Haff offers a free consultation at 616-438-6719, answered 24/7, and the practice areas page lists the charges the office handles.