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One Court of Justice Blog

Apr 2017
April 24, 2017

COA: Defendant can withdraw plea if judge deviates from deal, but restitution is constitutional and need not be proportional

The Michigan Court of Appeals recently examined a wide range of arguments, ultimately finding that the trial court erred by imposing a fine, but upholding its orders for restitution. In People v. Foster, No. 329992, the defendant “pleaded guilty to two counts of breaking and entering with intent to commit a felony, MCL 750.110, and one count of possession with intent to deliver a controlled substance, MCL 333.7401(2)(b)(i).” The prosecution agreed to drop the charges in exchange for the defendant’s agreement to pay restitution. But, on appeal, the defendant argued that he could not be ordered to pay restitution where he was not convicted of the underlying crimes.

Apr 2017
April 15, 2017

Statute means what it says: any movement of victim to a place of greater danger supports OV 8 score.

Judicial additions to a plainly defined word are impermissible, said the Michigan Supreme Court. In People v. Barrera, No. 151282, the court held that the trial court had correctly decided the scoring of Offense Variables (OVs) for a crime of sexual assault. Rejecting prior holdings that expanded the requirements in the relevant criminal statute, the court found that the statute means what it says—any movement, or “asportation,” that involves moving the victim to a place of greater danger results in OV 8 being scored at 15 points. The statute does not provide an “incidental movement” exception, and courts are not at liberty to add one.

Apr 2017
April 12, 2017

COA: Contract with the state does not create a legal duty, does not make the contractor a public officer

Signing a contract with the Wayne County Building Authority does not make an independent contractor a public officer, said the Michigan Court of Appeals. In People v. Parlovecchio, No. 333590, the prosecution claimed that the defendant—an independent building contractor—could be indicted as “a public employee or person holding public trust under MCL 750.478.” The Court of Appeals disagreed. Analyzing the relevant statute, the court found that the criminal statute applies only to public officers and to those who owe a “duty created by law” to a state actor.

Apr 2017
April 09, 2017

COA: Although it imposes a tax, statute allowing trial courts to order criminal defendants to pay court costs is constitutional

The imposition of court costs on criminal defendants under MCL 769.1k(1)(b)(iii) is constitutional, said the Court of Appeals in People v Cameron, No. 330876. Addressing an issue the Court acknowledged had been challenged before but never settled by a published opinion, the Court held that although the statute imposes a tax on defendants, it is constitutional.

Apr 2017
April 04, 2017

MSC grants MOAA to consider scope of defendant’s right to withdraw plea where court imposes sentence arguably inconsistent with Cobbs evaluation

In People v Velez, No. 152778, the Michigan Supreme Court granted mini-oral argument on whether the trial court imposed a sentence within the bounds of a preliminary sentence evaluation given under People v Cobbs, 443 Mich 276 (1993).

Apr 2017
April 03, 2017

COA: Restitution can be based on course of conduct, not just charges of conviction.

According to the Michigan Court of Appeals, a defendant may be ordered to pay full restitution, even when the prosecution drops some charges contributing to the amount owed. In People v. Bryant, No. 328512, on order of the Michigan Supreme Court, the Court of Appeals examined “the propriety of the Wayne Circuit Court’s restitution award in light of People v. McKinley, 496 Mich 410.” The court in McKinley held that a restitution award “ties ‘the defendant’s course of conduct’ to the convicted offenses and requires a causal link between them.”

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