Deferred Sentencing (Domestic Assault Offenses)

What is "deferred sentencing"?

"Deferred sentencing" is a procedure where the entry of a criminal conviction is delayed until after the defendant is given an opportunity to successfully complete probation. If probation is successfully completed, the defendant will be discharged and the case will be dismissed with no conviction entering on defendant's record. However, if probation is failed, a conviction will enter on the defendant's record.

Is "deferred sentencing" available for domestic-violence crimes?

Yes.

What is domestic-violence?

"Domestic-violence" is any form of violence crime being committed by two individuals who have a relationship with eachother. There must be proof of this relationship between the defendant and alleged victim. The relationship can be any of the following: (1) a resident or former resident of the same household as defendant; (2) a spouse or former spouse of the defendant; (3) an individual who has had a "dating relationship" with the defendant; or (4) an individual who has had a child in common with the defendant.

How does a person get "deferred sentencing" for domestic violence crimes?

All of the following circumstances must exist, per MCL 769.4a, for a defendant to get "deferred sentencing" on a domestic violence crime:

  • The defendant must be plead guilty to, or be found guilty of, Domestic Assault and Battery (A.K.A. Domestic Violence; "DV")—1st offense, MCL 750.81, or Domestic Aggravated Assault and Battery—1st offense, MCL 750.81a.

  • The defendant must not have been previously convicted of any assault offense under MCL 750.81 or MCL 750.81a, or any substantially corresponding local ordinance.

  • The defendant must not have previously applied for deferred sentencing under MCL 769.4a.

  • The defendant must consent to the deferred proceedings.

  • The prosecuting attorney, "in consultation with the victim," must consent to the deferred proceedings.

  • The court may exercise its discretion to grant deferred proceedings under MCL 769.4a (the court is not required to grant such proceedings).

  • The court must, if it decides to grant deferred proceedings under MCL 769.4a, place the defendant on probation with various terms and conditions.

  • Upon fulfillment of the terms and conditions of probation the court must discharge the defendant and dismiss the proceedings.

  • However, if any of the following circumstances exist, the court must enter an adjudication of guilt and proceed as if the defendant was convicted of the charged offense: (1) the defendant violates a court order that he or she receive counseling regarding violent behavior; (2) the defendant violates a court order regarding having no contact with a named individual; and (3) the defendant commits an "assaultive crime."

What is the legal effect of successfully completing the "deferred sentencing" requirements in MCL 769.4a?

The defendant will be discharged from probation; the case will be dismissed and turned into a non-public record (viewable only by courts and police agencies); and the discharge and dismissal will be without an adjudication of guilt and therefore not a conviction under MCL 769.4a (or for purposes of disqualifications or disabilities imposed by law upon a conviction of a crime).

How many times can a defendant be granted "deferred sentencing" under MCL 769.4a?

One time only. MCL 769.4a specifically limits an individual to 1 discharge and dismissal.

Can a defendant be granted "deferred sentencing" under MCL 769.4a if he pleads "no contest" (or nolo contendre) instead of guilty?

No. MCL 769.4a specifically requires that a defendant plead guilty or be found guilty of the enumerated crimes.

Can a defendant be sentenced to jail even if "deferred sentencing" is granted?

Yes. Nothing in MCL 769.4a prevents a judge from sentencing a defendant to jail time. However, the imposition of jail time is not required and will depend on many facts and circumstances. The maximum criminal penalties for Domestic Assault and Battery are 93 days and/or a $500.00 fine. The maximum criminal penalties for Domestic Aggravated Assault and Battery are 1-year and/or a $1,000.00 fine.

What is the difference between Assault and Battery and Domestic Violence?

The only difference between the two is proof of a relationship between the defendant and alleged victim. With Assault and Battery, a prosecutor need not prove a relationship between the defendant and alleged victim.

What is the difference between Domestic Violence and Battery and Domestic Aggravated Violence?

With Domestic Assault and Battery, the prosecutor need not prove that the defendant inflicted an injury on the victim. However, with Domestic Aggravated Assault and Battery, the prosecutor must prove that the defendant inflicted "a serious or aggravated injury" on the victim. Generally a "serious or aggravated injury" is one that requires immediate medical attention.

What does a "dating relationship" mean?

A "dating relationship" means frequent, intimate associations primarily characterized by the expectation of affectional involvement. However, it does not mean a casual relationship or an ordinary fraternization between 2 individuals in a business or social context.