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Ahead of the Curve Auto Supplier Blog

October 12, 2016

MSC to hear MOAA on whether prosecutor satisfied notice requirements when seeking enhanced sentence

The Michigan Supreme Court will hear oral arguments on whether a Michigan law requiring notice to a criminal defendant should be strictly construed. In People v. Swift, No. 151439, the defendant was sentenced as a three-time habitual offender. MCL 769.11 allows the prosecutor to seek an enhanced sentence for repeat offenders. But MCL 769.13 requires the prosecutor to file “a written notice of his or her intent to do so within 21 days after the defendant’s arraignment.” In this case, the felony warrant and felony complaint, both of which were filed before the defendant’s arraignment, indicated the prosecutor’s intent to seek an enhanced sentence. On the day of arraignment, the defendant was also given a copy of the felony information, which also indicated that the prosecutor intended to seek an enhanced sentence.
But MCL 769.13 requires the prosecutor to actually serve on the defendant notice of the intent to seek an enhanced sentence and to file “a written proof of service with the clerk of the court.” In Swift, the prosecutor failed to do so—the defendant only received notice before and during arraignment in the form of the felony warrant, felony complaint, and felony information. Defendant Swift therefore claims the prosecutor did not meet the requirements of the statute, and seeks a resentencing. The Michigan Supreme Court has ordered the parties to file supplemental briefs discussing: “1) whether serving the habitual offender notice prior to the defendant’s arraignment on the information satisfies the 21-day time requirement under MCL 769.13, and 2) if not, whether the harmless error rules apply to the failure to serve the habitual offender notice within the 21-day time requirement under MCL 769.13.”

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