ICLE Homepage | Other New and Amended MCRs
April 8, 1997
96-57
Amendments to MCR 5.901-5.993
_____________________________________
On order of the Court, the need for immediate action having
been found, the following amendments to subchapter 5.900 of the
Michigan Court Rules were adopted April 8, 1997, to be effective
May 15, 1997. The amendments shall remain in effect until further
order of this Court. Interested persons are invited to submit
comments on the substance and form of the rules to the Clerk of the
Supreme Court.
ICLE Editor's Note:
[Italicized, bracketed text] indicates text that has been
deleted.
Bold text indicates new text.
The rules are amended as follows:
Rule 5.901 Applicability of Rules
(A)-(B)(2) [Unchanged.]
(3) MCR 5.951-5.956 apply only to designated
proceedings.
[] (4) [Formerly (3), redesignated, but
otherwise unchanged.]
Rule 5.903 Definitions
(A)(1)-(4)(a) [Unchanged.]
(b) a man who legally adopts the minor; [or]
(c) a man who was named on a Michigan birth
certificate for a minor born after July 20,
1993, as provided by MCL 333.21532; MSA
14.15(21532); or
(d) a man whose paternity is established in one of the
following ways within time limits, when applicable,
set by the court pursuant to this subchapter:
(i) the man and the mother of the minor
acknowledge that he is the minor's father
[in a writing executed and acknowledged by
them in the same manner provided by law for
the execution and acknowledgment of deeds of
property and filed in the probate court in the
county in which the man, mother, or minor
resides;] by completing and filing an
acknowledgement of paternity. The man and
mother shall each sign the acknowledgement of
paternity in the presence of 2 witnesses, who
shall also sign the acknowledgement, and in
the presence of a judge, clerk of the court,
or notary public appointed in this state. The
acknowledgement shall be filed at either the
time of birth or another time during the
child's lifetime with the probate court in the
mother's county of residence or, if the mother
is not a resident of this state when the
acknowledgement is executed, in the county of
the child's birth.
(ii) [Unchanged.]
(iii) the man acknowledges that he is the
minor's father by completing and filing an
acknowledgement of paternity, without the
mother joining in the acknowledgment
[of the mother, with the approval of the
court as provided in MCR
5.921(D)(E)(2)(b); or] if she is
disqualified from signing the acknowledgement
by reason of mental incapacity, death, or any
other reason satisfactory to the probate judge
of the county of the mother's residence or, if
the mother is not a resident of this state
when the man signs the acknowledgement, of the
county of the minor's birth.
(iv) [Unchanged.]
(5)-(17) [Unchanged.]
(18) "Confidential files" means all materials made
confidential by statute or court rule including but not
limited to the diversion record of a minor pursuant
to the Juvenile Diversion Act, 1988 PA 13, MCL 722.821 et
seq.; MSA 25.243(51) et seq.; the separate statement
about known victims of juvenile offenses, as required by
1988 PA 22, MCL 780.781 et seq.; MSA 28.1287(781) et
seq.; the testimony taken during a closed proceeding
pursuant to MCR 5.925(A)(2) and § 17 of the Juvenile
Code, MCL 712A.17; MSA 27.3178(598.17); the dispositional
reports pursuant to MCR 5.943(C)(3) and MCR
5.973(A)(4)(c); fingerprinting material required to be
maintained for reportable juvenile offenses pursuant to
MCL 28.243 et seq.; MSA 4.463 et seq., as amended by 1988
PA 40; reports of sexually motivated crimes, MCL
28.247; MSA 4.467(1); test results of those charged with
certain sexual offenses or substance abuse offenses, MCL
333.5129; MSA 14.15(5129); and court materials or
records that the court has determined to be confidential.
(19) [Unchanged.]
(20) "Designated proceeding" means a proceeding
in which the prosecuting attorney has
designated, or has requested the court to
designate, the case for trial in juvenile
court in the same manner as an adult.
(B) Delinquency Proceeding(s). When used in delinquency
proceedings, unless the context otherwise indicates:
(1)-(6)(c)[Unchanged.]
(d) assault with intent to maim, MCL
750.86; MSA 28.281;
(e)-(h) [Formerly (d)-(g), redesignated, but otherwise
unchanged.]
[] (i) home invasion in the first
degree, MCL 750.110a(2); MSA
28.305(a)(2);
(j) escape from a juvenile facility, MCL
750.186a; MSA 28.383a;
[] (k)-(t) [Formerly (h)-(q), redesignated, but
otherwise unchanged.]
(u) carjacking, MCL 750.529a; MSA
28.797(a);
[] (v) ([Formerly (r), redesignated, but otherwise
unchanged.]
(w) bank, safe or vault robbery, MCL
750.531; MSA 28.799;
[(s)] (x) possession of or manufacture,
delivery, or possession with
intent to manufacture or
deliver 650 grams or more of
any schedule 1 or 2 controlled
substance, MCL 333.7401; MSA
14.15(7401) and MCL 333.7403;
MSA 14.15(7403).
(C) [Unchanged.]
(D) Designated Proceedings.
(1) "Arraignment" means the first hearing in a
designated case at which the juvenile is informed
of the allegations, the juvenile's rights, and the
potential consequences of the proceeding; the
matter is set for a probable cause or designation
hearing; and, if the juvenile is in custody or
custody is requested pending trial, a decision is
made regarding custody pursuant to MCR 5.935(D).
(2) "Court-designated case" means a case in which the
court, pursuant to a request by the prosecuting
attorney, has decided according to the factors set
forth in MCR 5.952(C)(3) that the juvenile is to be
tried in juvenile court in the same manner as an
adult for an offense other than a specified
juvenile violation.
(3) "Designated case" means either a prosecutor-
designated case or a court-designated case.
(4) "Designation hearing" means a hearing on
the prosecuting attorney's request that the
court designate the case for trial in juvenile
court in the same manner as an adult.
(5) "Preliminary examination" means a probable cause
hearing in which the court determines whether there
is probable cause to believe that the specified
juvenile violation or alleged offense occurred and
whether there is probable cause to believe that the
juvenile committed the specified juvenile violation
or alleged offense.
(6) "Prosecutor-designated case" means a case in which
the prosecuting attorney has endorsed a petition
charging a juvenile with a "specified juvenile
violation" with the designation that the juvenile
is to be tried in juvenile court in the same manner
as an adult.
(7) "Sentencing" means the imposition of any
sanction on a juvenile that could be imposed
on an adult convicted of the offense for which
the juvenile was convicted or the decision to
delay the imposition of such a sanction.
(8) "Specified juvenile violation" means any offense,
attempted offense, conspiracy to commit an offense,
or solicitation to commit an offense that would
constitute a violation of any of the following:
a. burning of a dwelling house, MCL 750.72; MSA
28.267;
b. assault with intent to commit murder, MCL
750.83; MSA 28.278;
c. assault with intent to maim, MCL 750.86; MSA
28.281;
d. assault with intent to rob - armed, MCL
750.89; MSA 28.284;
e. attempted murder, MCL 750.91; MSA 28.286;
f. first-degree murder, MCL 750.316; MSA
28.548;
g. second-degree murder, MCL 750.317; MSA
28.549;
h. kidnaping, MCL 750.349; MSA 28.581;
i. first-degree criminal sexual conduct, MCL
750.520b; MSA 28.788(2);
j. armed robbery, MCL 750.529; MSA 28.797;
k. carjacking, MCL 750.529a; MSA 28.797(a);
l. robbery of a bank, safe or vault, MCL 750.531;
MSA 28.799;
m. possession of or manufacture, delivery, or
possession with intent to manufacture or
deliver 650 grams or more of any schedule one
or two controlled substance, MCL 333.7401-
333.7403; MSA 14.15(7401)-14.15 (7403);
n. assault with intent to do great bodily harm
less than murder, MCL 750.84; MSA 28.279, if
armed with a dangerous weapon as defined by
MCL 712A.2d(9)(b); MSA 27.3178(598.2d)(9)(b);
o. first-degree home invasion, MCL 750.110a(2);
MSA 28.305(a)(2), if armed with a dangerous
weapon as defined by MCL 712A.2d(9)(b); MSA
27.3178(598.2d)(9)(b);
p. escape or attempted escape from a medium
security or high security facility operated by
the Family Independence Agency or a high-
security facility operated by a private agency
under contract with the Family Independence
Agency, MCL 750.186a; MSA 28.383a.
q. any lesser-included offense of an offense
described in (a) through (p) above, if the
juvenile was alleged in the petition to have
violated an offense described in (a) through
(p), above.
r. any offense arising out of the same
transaction as an offense described in (a)
through (p) if the juvenile was alleged in the
petition to have violated an offense described
in (a) through (p), above.
(9) "Tried in the same manner as an adult" means a
trial in which the juvenile is afforded all the
legal and procedural protections that an adult
would be given if charged with the same offense in
a court of general criminal jurisdiction.
Rule 5.911 Jury
(A)-(C)(1)-(3) [Unchanged.]
(4) In a designated case, jury procedure is
governed by MCR 6.401-6.420.
Rule 5.912 Judge
(A) Right. The parties have the right to a judge at a hearing on
the formal calendar. [A judge must preside at a trial by
jury and at a waiver proceeding pursuant to MCR 5.950.]
(1) A judge must preside at:
(a) a trial by jury,
(b) a nonjury trial in a designated case,
(c) a preliminary examination in a designated
case,
(d) a sentencing in a designated case,
and
(e) a waiver proceeding pursuant to MCR 5.950.
(2) The judge who presides at the preliminary
examination may not preside at the trial of the
same designated case unless a determination of
probable cause is waived. The judge who presides
at a preliminary examination may accept a plea in
the designated case.
(3) The juvenile has the right to demand that the same
judge who accepted the plea or presided at the
trial of a designated case preside at sentencing or
delayed imposition of sentence, but not at a
juvenile disposition of the designated case.
(B)-(C) [Unchanged.]
Rule 5.913 Referees
(A) Assignment of Matters to Referees
(1) General. Subject to the limitation set forth in subrules
(A)(2) and (A)(3), the court may assign a referee to
conduct a preliminary inquiry or to preside at a hearing
other than: (a) a jury trial; [or]
(b) a waiver proceeding pursuant to MCR 5.950;
(c) or a preliminary examination, trial or sentencing of
a designated case, and to make recommended findings
and conclusions.
(2)-(3) [Unchanged.]
(4) Designated Cases. A referee licensed to practice
law in Michigan may preside at a hearing to
designate a case or to amend a petition to
designate a case and to make recommended findings
and conclusions.
(B)-(C) [Unchanged.]
Rule 5.914 Prosecuting Attorney
(A)-(C) [Unchanged.]
(D) Designated Proceedings.
(1) Prosecutor Designation. Only the prosecuting attorney
may designate a case in which the petition alleges a
specified juvenile violation.
(2) Leave to Designate. Only the prosecuting attorney may
request leave of court to amend a petition to designate
a case in which the petition alleges a specified juvenile
violation.
(3) Court Designation. Only the prosecuting attorney may
request the court to designate a case involving a
petition that alleges an offense other than the specified
juvenile violation.
Rule 5.922 Pretrial Procedures in Delinquency and Child
Protection Proceedings
(A)-(D) [Unchanged.]
Rule 5.923 Miscellaneous Hearing Procedures
(A)-(C) [Unchanged.]
(D) Lineup. If a complaint or petition is filed
against a juvenile alleging violation of a criminal
law or ordinance, the court may, at the request of
the prosecuting attorney, order the juvenile to
appear at a place and time designated by the court
for identification by another person, including a
corporeal lineup pursuant to MCL 712A.32; MSA
27.3178(598.30b). If the court orders the juvenile
to appear for such an identification proceeding,
the court must notify the juvenile and the
juvenile's parent, guardian or legal custodian that
the juvenile has the right to consult with an
attorney and have an attorney present during the
identification proceeding and that if the juvenile
and the juvenile's parent, guardian or legal
custodian cannot afford an attorney, the court will
appoint an attorney for the juvenile if requested
on the record or in writing by the juvenile or the
juvenile's parent, guardian or legal custodian.
[] (E)-(F) [Formerly (D)-(E), redesignated, but otherwise
unchanged.]
Rule 5.925 Open Proceedings; Judgments and Orders; Records
Confidentiality; Expungement
(A)-(E)(1)-(3) [Unchanged.]
(4) Setting aside convictions. The court may
only set aside a conviction pursuant to MCL
780.621; MSA 28.1274(101).
(F) [Unchanged.]
Rule 5.926 Transfer of Jurisdiction; Change of Venue
(A)-(E) [Unchanged.]
(F) Designated cases. Designated cases are to be filed in
the probate court of the county in which the offense is
alleged to have occurred. Other than a change of venue
for the purpose of trial, a designated case may not be
transferred to any other county, except, after
conviction, a designated case may be transferred to the
juvenile's county of residence for entry of a juvenile
disposition only. Sentencing of a juvenile, including
delayed imposition of sentence, may only be done in the
county in which the offense occurred.
Rule 5.928 Contempt of Court; Attendance; Contempt.
If a parent or guardian of a juvenile who is within
the court's jurisdiction under MCL 712A.2(a)(1); MSA
27.3178(598.2)(a)(1) fails to attend a hearing before a judge or
referee after having received a summons earlier in the proceedings
and, subsequently, been given notice of the hearing by the court,
the parent or guardian may be held in contempt of court and fined,
although not jailed, as provided in MCL 600.1715; MSA 27A.1715
unless the court had, before the hearing, excused the parent's
attendance or unless, at a hearing to consider the issue of
contempt, the parent or guardian shows good cause for failure to
attend the juvenile's hearing. The parent or guardian is entitled
to a due process hearing. The contempt shall be considered
criminal in nature. If the parent or guardian fails to pay the
fine within a reasonable time set by the court, proceedings to
enforce the fine may be either civil or criminal in nature and may
include jail as provided in MCL 600.1715; MSA 27A.1715.
Rule 5.942 Trial
(A) Time. In all cases the trial must be held within 6 months
after the filing of the petition, unless adjourned for good
cause. If the juvenile is detained, the trial has not started
within 63 days after the juvenile is taken into custody, and
the delay in starting the trial is not attributable to the
defense, the court shall forthwith order the juvenile released
pending trial without requiring that bail be posted unless
the juvenile is being detained on another matter.
(B)-(C) [Unchanged.]
Rule 5.943 Dispositional Phase
(A)-(E)(1)-(3) [Unchanged.]
(4) Mandatory Detention for Use of a Firearm.
(a) In addition to any other disposition, a
juvenile, other than a juvenile sentenced in
the same manner as an adult under MCL
712A.18(1)(n); MSA 27.3178(598.18)(1)(n) shall
be committed under MCL 712A.18(1)(e); MSA
27.3178(598.18)(1)(e) to a detention facility
for a specified time if all the following
circumstances exist:
(i) the juvenile is under the jurisdiction of
the juvenile division under MCL
712A.2(a)(1); MSA 27.3178(598.2)(a)(1),
(ii) the juvenile was adjudicated or convicted
of violating a criminal municipal
ordinance or law of this state or of the
United States, and
(iii) the juvenile was found to have used a
firearm during the offense.
(b) The length of the commitment to a detention
facility shall not exceed the length of the
sentence that could have been imposed if the
juvenile had been sentenced as an adult.
(c) "Firearm" means any weapon from which
a dangerous projectile may be propelled
by using explosives, gas or air as a
means of propulsion, except any
smoothbore rifle or hand gun designed and
manufactured exclusively for propelling
BB's not exceeding .177 caliber by means
of spring, gas or air.
Rule 5.944 Supplemental Dispositions; Dispositional Rehearings
(A)-(D)(1)-(2) [Unchanged.]
(3) Required Commitment Review Hearing. When a juvenile has
been placed in a facility or institution under MCL
712A.18(1)(e); MSA 27.3178(598.18)(1)(e) for having
committed, after October 1, 1988, a reportable juvenile
offense other than [(g)] (h), [(k)]
(n) and [(l)] (o) of MCR
5.903(B)(6), the court shall schedule a commitment review
hearing to be held within 42 days before the juvenile
attains age 19 unless adjourned for good cause.
(a)-(b) [Unchanged.]
(c) [Findings] Burden of Proof; Evidence;
Criteria. [Before the court may continue
jurisdiction over the juvenile until age 21,]
[the prosecuting attorney must demonstrate]
The juvenile has the burden of proving by a
preponderance of the evidence that the juvenile has
[not] been rehabilitated [or]
and that the juvenile does not
present[s] a serious risk to public safety.
Evidence shall be received under the rules
applicable to a dispositional hearing pursuant to
MCR 5.943(C). In making the determination, the
court must consider the following factors:
(i)-(vii) [Unchanged.]
(4) [Unchanged.]
(E) [Unchanged.]
Rule 5.950 Waiver of Jurisdiction
(A) Motion by Prosecuting Attorney. A motion by the prosecuting
attorney requesting that the juvenile court waive its
jurisdiction to a court of general criminal
jurisdiction must be in writing and must clearly indicate the
charges and that if the motion is granted the juvenile will be
prosecuted as though an adult.
(1)-(2) [Unchanged.]
(B) Hearing Procedure. The waiver hearing shall consist of two
phases. Notice of the date, time, and place of the hearings
may be given either on the record directly to the juvenile or
to the attorney [of] for the juvenile, the
prosecuting attorney, and all other parties, or in writing,
served on each individual.
(1) First Phase. The first-phase hearing is to determine
whether there is probable cause that an offense has been
committed which if committed by an adult would be a
felony, and that there is probable cause that the
juvenile who is [15] 14 years of age or
older committed the offense.
(a)-(c) [Unchanged.]
(2) Second Phase. If the court finds the requisite probable
cause at the first-phase hearing, or if there was no
hearing pursuant to subrule (B)(1)(c), the second-phase
hearing shall be held to determine whether the interests
of the juvenile and the public would best be served by
granting the motion[.], unless the juvenile has
previously been subject to the jurisdiction of the
circuit court under MCL 712A.4; MSA 27.3178(598.4) or MCL
600.606; MSA 27A.606, or the Recorder's Court of the City
of Detroit under MCL 712A.4; MSA 27.3178(598.4) or MCL
725.10a; MSA 27.3950(1). If the juvenile has been
subject to the jurisdiction of either the circuit court
or the recorder's court under MCL 712A.4; MSA
27.3178(598.4), MCL 600.606; MSA 27A.606 or MCL 725.10a;
MSA 27.3950(1), the court shall waive jurisdiction of the
juvenile to the court of general criminal jurisdiction
without holding the second-phase hearing.
(a) The Michigan Rules of Evidence, other
than those with respect to privileges, do
not apply to the second phase of the
waiver hearing.
[] (b) [Formerly (a), redesignated, but otherwise
unchanged.]
[(b)][] (c) The prosecuting
attorney has the
burden of
establishing by a
preponderance of the
evidence that the
best interests of
the juvenile and the
public would be
served by waiver.
[The Michigan
Rules of Evidence do
not apply to the
second phase of the
waiver hearing.]
[][(c)] (d) The court, in
determining whether
to waive the
juvenile to the
court having general
criminal
jurisdiction, shall
consider and make
findings on the
following criteria,
giving [each]
greater
weight [as
appropriate to the
circumstances]
to the
seriousness of the
alleged offense and
the juvenile's prior
record of
delinquency and to
other criteria:
(i) [the juvenile's prior record and character,
physical and mental maturity, and pattern of
living] the seriousness of the alleged
offense in terms of community protection,
including, but not limited to, the existence
of any aggravating factors recognized by the
sentencing guidelines, the use of a firearm or
other dangerous weapon, and the effect on any
victim;
(ii) [the seriousness of the offense]
the culpability of the juvenile in
committing the alleged offense, including, but
not limited to, the level of the juvenile's
participation in planning and carrying out the
offense and the existence of any aggravating
or mitigating factors recognized by the
sentencing guidelines;
(iii) [whether the offense is part of a
repetitive pattern of offenses which would
lead to the determination either that the
juvenile is not amenable to treatment, or
that, owing to the nature of the delinquent
behavior, the juvenile is likely to disrupt
the rehabilitation of others in the treatment
program, despite the juvenile's potential for
treatment] the juvenile's prior record
of delinquency including, but not limited to,
any record of detention, any police record,
any school record, or any other evidence
indicating prior delinquent behavior;
(iv) [whether, despite the juvenile's potential
for treatment, the nature of the juvenile's
delinquent behavior is likely to render the
juvenile dangerous to the public when released
at age 19 or 21] the juvenile's
programming history, including, but not
limited to, the juvenile's past willingness to
participate meaningfully in available
programming;
(v) [whether the juvenile is more likely to be
rehabilitated by the services and facilities
available in adult programs and procedures
than in juvenile programs and procedures]
the adequacy of the punishment or
programming available in the juvenile justice
system;
(vi) [whether the best interest of the public
welfare and the protection of the public
security require that the juvenile stand trial
as an adult offender] the dispositional
options available for the juvenile.
(e) The court, in determining whether to
waive the juvenile to the court having
general criminal jurisdiction, may
also consider any stipulation by the
defense to a finding that the best
interests of the juvenile and the public
support a waiver[, and any prior court
order waiving the juvenile to a court of
general criminal jurisdiction].
(C) Grant of Waiver Motion.
(1) If the court determines that it is in the best
interests of the juvenile and public to waive
jurisdiction over the juvenile, the court
must: [comply with subrules (C)(1)
through (C)(3).]
[(1)] (a) [The court must] enter a
written order granting the
motion to waive jurisdiction
and transferring the matter to
the appropriate court having
general criminal jurisdiction
for arraignment of the juvenile
on an information.
[(2)] (b) [The court must] make
findings of fact and
conclusions of law forming the
basis for entry of the waiver
order. The findings and
conclusions may be incorporated
in a written opinion or stated
on the record.
[(3)] (c) [The court must] advise
the juvenile, orally or in
writing, [on the
record,] that
[] (i)-(iii) [Formerly (a)-(c), redesignated, but
otherwise unchanged.]
[(4)] (d) The court shall send, without
cost, a copy of the order and a copy of
the written opinion or transcript of the
findings and conclusions of the court, to the
court having general criminal jurisdiction[
without charge].
(2) Upon the grant of a waiver motion, a
juvenile shall be transferred to the adult
criminal justice system and shall be subject
to the same procedures used for adult criminal
defendants. Juveniles waived pursuant to this
rule are not required to be kept separate and
apart from adult prisoners.
(D) Denial of Waiver Motion. If the waiver
motion is denied, the court shall make written findings
or place them on the record. A transcript of the court's
findings or, if a written opinion is prepared, a copy of the
written opinion shall be sent to the prosecuting attorney,
juvenile, or juvenile's attorney upon request. If the
juvenile is detained and the trial of the matter in juvenile
court has not started within 28 days after entry of the order
denying the waiver motion and the delay is not
attributable to the defense, the court shall forthwith
order the juvenile released pending trial without requiring
that bail be posted unless the juvenile is being detained
on another matter.
(E) [Unchanged.]
(F) As used in this rule, "felony" means an offense
punishable by imprisonment for more than one year
or an offense designated by law as a felony.
Rule 5.951 Initiating Designated Proceedings
(A) Prosecutor-Designated Cases.
(1) Juvenile in custody or custody requested.
(a) If the prosecuting attorney submits a petition
designating the case for trial in the same manner
as an adult, the arraignment must commence no later
than 24 hours after the juvenile has been taken
into court custody, excluding Sundays and holidays
as defined by MCR 8.110(D)(2), or the juvenile must
be released.
(b) General adjournment. The court may adjourn the
arraignment for up to 7 days:
(i) to secure the attendance of the juvenile's
parent, guardian, or legal custodian or of a
witness, or
(ii) for other good cause shown.
(c) Procedure.
(i) The court shall determine whether the
juvenile's parent, guardian, or legal
custodian has been notified and is present.
The arraignment may be conducted without a
parent, guardian, or legal custodian, provided
a guardian ad litem or attorney appears with
the juvenile.
(ii) The court shall read the allegations in the
petition.
(iii) The court shall advise the juvenile on
the record in plain language:
a. of the right to an attorney pursuant to
MCR 5.915(A)(2);
b. of the right to trial by judge or jury on
the allegations in the petition;
c. of the right to remain silent and that
any statement made by the juvenile may be
used against the juvenile;
d. of the right to have a preliminary
examination within 14 days;
e. that the case has been designated for
trial in the same manner as an adult and
if the prosecuting attorney proves that
there is probable cause to believe an
offense was committed and there is
probable cause to believe that the
juvenile committed the offense, the
juvenile will be afforded all the rights
of an adult charged with the same crime
and that upon conviction the juvenile may
be sentenced as an adult;
f. of the maximum possible prison sentence
and any mandatory minimum sentence
required by law.
(iv) Unless the arraignment is adjourned, the court
must decide whether to authorize the petition
to be filed. If it authorizes the filing of
the petition, the court must:
a. determine if fingerprints must be taken
as provided by MCR 5.936; and
b. determine if conditions warrant detention
pursuant to MCR 5.935(D), or
c. release the juvenile pursuant to MCR
5.935(C).
(v) A juvenile may be detained pending the
completion of the arraignment if it appears to
the court that one of the circumstances in MCR
5.935(D)(2) is present.
(vi) If the petition is authorized for filing, the
court must schedule a preliminary examination
within 14 days before a judge other than the
judge who would conduct the trial.
(2) Juvenile not in custody; custody not requested.
(a) If the prosecuting attorney submits a petition
designating the case for trial in the same manner
as an adult, the juvenile shall be brought before
the court for an arraignment as soon as the
juvenile's attendance can be secured.
(b) Procedure.
(i) The court shall determine whether the
juvenile's parent, guardian, or legal
custodian has been notified and is present.
The arraignment may be conducted without a
parent, guardian, or legal custodian, provided
a guardian ad litem or attorney appears with
the juvenile.
(ii) The court shall read the allegations in the
petition.
(iii) The court shall advise the juvenile on the
record in plain language:
a. of the right to an attorney pursuant to
MCR 5.915(A)(2);
b. of the right to trial by judge or jury on
the allegations in the petition;
c. of the right to remain silent and that
any statement made by the juvenile may be
used against the juvenile;
d. of the right to have a preliminary
examination within 14 days;
e. that the case has been designated for
trial in the same manner as an adult and
if the prosecuting attorney proves that
there is probable cause to believe an
offense was committed and there is
probable cause to believe that the
juvenile committed the offense, the
juvenile will be afforded all the rights
of an adult charged with the same crime
and that upon conviction the juvenile may
be sentenced as an adult;
f. of the maximum possible prison sentence
and any mandatory minimum sentence
required by law;
(iv) Unless the arraignment is adjourned, the court
must decide whether to authorize the petition
to be filed. If it authorizes the filing of
the petition, the court must determine if
fingerprints must be taken as provided by MCR
5.936.
(v) If the petition is authorized for filing, the
court must schedule a preliminary examination
within 14 days before a judge other than the
judge who would conduct the trial.
(3) If a petition submitted by the prosecuting attorney
alleging a specified juvenile violation did not include
a designation of the case for trial as an adult:
(a) the prosecuting attorney may, by right, amend the
petition to designate the case during the
preliminary hearing, or
(b) the prosecuting attorney may request leave of the
court to amend the petition to designate the case
no later than the pretrial hearing or, if there is
no pretrial hearing, at least 21 days before trial,
absent good cause for further delay. The court may
permit the prosecuting attorney to amend the
petition to designate the case as the interests of
justice require.
(B) Court-Designated Cases.
(1) Juvenile in custody or custody requested.
(a) If the prosecuting attorney submits a petition
charging an offense other than a specified juvenile
violation and requests the court to designate the
case for trial in the same manner as an adult,
arraignment must commence no later than 24 hours
after the juvenile has been taken into court
custody, excluding Sundays and holidays as defined
by MCR 8.110(D)(2), or the juvenile must be
released.
(b) General adjournment. The court may adjourn the
arraignment for up to 7 days:
(i) to secure the attendance of the juvenile's
parent, guardian, or legal custodian or of a
witness, or
(ii) for other good cause shown.
(c) Procedure.
(i) The court shall determine whether the
juvenile's parent, guardian, or legal
custodian has been notified and is present.
The arraignment may be conducted without a
parent, guardian, or legal custodian, provided
a guardian ad litem or attorney appears with
the juvenile.
(ii) The court shall read the allegations in the
petition.
(iii) The court shall advise the juvenile on the
record in plain language:
a. of the right to an attorney pursuant to
MCR 5.915(A)(2);
b. of the right to trial by judge or jury on
the allegations in the petition;
c. of the right to remain silent and that
any statement made by the juvenile may be
used against the juvenile;
d. of the right to have a designation
hearing within 14 days;
e. of the right to have a preliminary
examination within 14 days after the case
is designated if the juvenile is charged
with a felony or offense for which an
adult could be imprisoned for more than
one year;
f. that if the case is designated by the
court for trial in the same manner as an
adult and, if a preliminary examination
is required by law, the prosecuting
attorney proves that there is probable
cause to believe that an offense was
committed and there is probable cause to
believe that the juvenile committed the
offense, the juvenile will be afforded
all the rights of an adult charged with
the same crime and that upon conviction
the juvenile may be sentenced as an
adult;
g. of the maximum possible prison sentence
and any mandatory minimum sentence
required by law;
(iv) Unless the arraignment is adjourned, the court
must decide whether to authorize the petition
to be filed. If it authorizes the filing of
the petition, the court must:
a. determine if fingerprints must be taken
as provided by MCR 5.936; and
b. determine if conditions warrant detention
pursuant to MCR 5.935(D), or
c. release the juvenile pursuant to MCR
5.935(C).
(v) A juvenile may be detained pending the
completion of the arraignment if it appears to
the court that one of the circumstances in MCR
5.935(D)(2) is present.
(vi) If the petition is authorized for filing, the
court must schedule a designation hearing
within 14 days.
(2) Juvenile not in custody; custody not requested.
(a) If the prosecuting attorney submits a petition
alleging an offense other than a specified juvenile
violation and requests the court to designate the
case for trial in the same manner as an adult, the
juvenile shall be brought before the court for an
arraignment as soon as the juvenile's attendance
can be secured.
(b) Procedure.
(i) The court shall determine whether the
juvenile's parent, guardian, or legal
custodian has been notified and is present.
The arraignment may be conducted without a
parent, guardian, or legal custodian, provided
a guardian ad litem or attorney appears with
the juvenile.
(ii) The court shall read the allegations in the
petition.
(iii) The court shall advise the juvenile on the
record in plain language:
a. of the right to an attorney pursuant to
MCR 5.915(A)(2);
b. of the right to trial by judge or jury on
the allegations in the petition;
c. of the right to remain silent and that
any statement made by the juvenile may be
used against the juvenile;
d. of the right to have a designation
hearing within 14 days,
e. of the right to have a preliminary
examination within 14 days after the case
is designated if the juvenile is charged
with a felony or offense for which an
adult could be imprisoned for more than
one year;
f. that if the case is designated by the
court for trial in the same manner as an
adult and, if a preliminary examination
is required by law, the prosecuting
attorney proves that there is probable
cause to believe an offense was committed
and there is probable cause to believe
that the juvenile committed the offense,
the juvenile will be afforded all the
rights of an adult charged with the same
crime and that upon conviction the
juvenile may be sentenced as an adult;
g. of the maximum possible prison sentence
and any mandatory minimum sentence
required by law;
(iv) Unless the arraignment is adjourned, the court
must decide whether to authorize the petition
to be filed. If it authorizes the filing of
the petition, the court must determine if
fingerprints must be taken as provided by MCR
5.936; and
(v) If the petition is authorized for filing, the
court must schedule a designation hearing with
14 days.
(3) If a petition submitted by the prosecuting attorney
alleging an offense other than a specified juvenile
violation did not include a request that the court
designate the case for trial as an adult,
(a) The prosecuting attorney may, by right, amend the
petition to request the court to designate the case
during the preliminary hearing, or
(b) The prosecuting attorney may request leave of the
court to amend the petition to request the court to
designate the case no later than the pretrial
hearing or, if there is no pretrial hearing, at
least 21 days before trial, absent good cause for
further delay. The court may permit the
prosecuting attorney to amend the petition to
request the court to designate the case as the
interests of justice require.
Rule 5.952 Designation Hearing
(A) Time. The designation hearing shall be commenced within 14
days after the arraignment, unless adjourned for good cause.
(B) Notice.
(1) A copy of the petition or a copy of the petition and
separate written request for court designation shall be
personally served on the juvenile and the juvenile's
parent, guardian, or legal custodian, if the address or
whereabouts of the juvenile's parent, guardian, or
custodian is known or can be determined by the exercise
of due diligence.
(2) Notice of the date, time, and place of the designation
hearing may be given either orally on the record to the
juvenile, the juvenile's parent, guardian, or legal
custodian, and the attorney for the juvenile, if any, and
the prosecuting attorney, or in writing, served on each
individual by mail or other manner reasonably calculated
to provide notice.
(C) Hearing procedure.
(1) Evidence. The Michigan Rules of Evidence, other than
those with respect to privileges, do not apply.
(2) The prosecuting attorney has the burden of proving by a
preponderance of the evidence that the best interests of
the juvenile and the public would be served by
designation.
(3) The court, in determining whether to designate the case
for trial in the same manner as an adult, shall consider:
(a) the seriousness of the alleged offense in terms of
community protection, including, but not limited
to, the existence of any aggravating factors
recognized by the sentencing guidelines, the use of
a firearm or other dangerous weapon, and the effect
on any victim;
(b) the culpability of the juvenile in committing the
alleged offense, including, but not limited to, the
level of the juvenile's participation in planning
and carrying out the offense and the existence of
any aggravating or mitigating factors recognized by
the sentencing guidelines;
(c) the juvenile's prior record of delinquency,
including, but not limited to, any record of
detention, any police record, any school record, or
any other evidence indicating prior delinquent
behavior;
(d) the juvenile's programming history, including, but
not limited to, the juvenile's past willingness to
participate meaningfully in available programming;
(e) the adequacy of the punishment or programming
available in the juvenile justice system; and
(f) the dispositional options available for the
juvenile.
(D) Grant of request for court designation.
(1) If the court determines that it is in the best interests
of the juvenile and the public that the juvenile be tried
in the same manner as an adult in the juvenile court,
the court must:
(a) enter a written order granting the request for
court designation and
(i) schedule a preliminary examination within 14
days if the juvenile is charged with a felony
or an offense for which an adult could be
imprisoned for more than one year, or
(ii) schedule the matter for trial or pretrial
hearing if the juvenile is charged with a
misdemeanor.
(b) make findings of fact and conclusions of law
forming the basis for entry of the order
designating the petition. The findings and
conclusions may be incorporated in a written
opinion or stated on the record.
(E) Denial of request for designation. If the request for court
designation is denied, the court shall make written findings
or place them on the record. Trial shall be scheduled
pursuant to MCR 5.941-5.944.
Rule 5.953 Preliminary Examination in Designated Cases
(A) Requirement. A preliminary examination must be held only in
designated cases in which the juvenile is alleged to have
committed a felony or an offense for which an adult could be
imprisoned for more than one year.
(B) Waiver. The juvenile may waive the preliminary examination if
the juvenile is represented by an attorney and the waiver is
made and signed by the juvenile in open court. The judge
shall find and place on the record that the waiver was freely,
understandingly, and voluntarily given.
(C) Combined hearing. The preliminary examination may be combined
with a designation hearing provided that the Michigan Rules of
Evidence, except as otherwise provided by law, apply only to
the preliminary examination phase of the combined hearing.
(D) Time. The preliminary examination must commence within 14
days of the arraignment in a prosecutor-designated case or
within 14 days after court-ordered designation of a petition,
unless the preliminary examination was combined with the
designation hearing.
(E) Procedure. The preliminary examination must be conducted in
accordance with MCR 6.110.
(F) Findings.
(1) If the court finds there is probable cause to believe
that the alleged offense was committed and probable cause to
believe the juvenile committed the offense, the court may
schedule the matter for trial or a pretrial hearing.
(2) If the court does not find there is probable cause to
believe that the alleged offense was committed or does
not find there is probable cause to believe the juvenile
committed the offense, the court shall dismiss the
petition, unless the court finds there is probable cause
to believe that a lesser-included offense was committed
and probable cause to believe the juvenile committed that
offense.
(3) If the court finds there is probable cause to believe
that a lesser-included offense was committed and probable
cause to believe the juvenile committed that offense, the
court may, as provided in MCR 5.952, further determine
whether the case should be designated as a case in which
the juvenile should be tried in the same manner as an
adult. If the court designates the case following the
determination of probable cause under this subsection,
the court may schedule the matter for trial or a pretrial
hearing.
(G) Confinement. If the court has designated the case and finds
probable cause that a felony or an offense for which an adult
could be imprisoned for more than one year has been committed
and probable cause that the juvenile committed the offense,
the judge may confine the juvenile in the county jail pending
trial. If the juvenile is under 17 years of age, the juvenile
may be confined in jail only if the juvenile can be separated
by sight and sound from adult prisoners and if the sheriff has
approved the confinement.
Rule 5.954 Trial of Designated Cases
Trials of designated cases are governed by subchapter 6.400 of
the Michigan Court Rules except for MCR 6.402(A). The court may
not accept a waiver of trial by jury until after the juvenile has
been offered an opportunity to consult with a lawyer.
Rule 5.955 Sentencing or Disposition in Designated Cases
(A) If a juvenile is convicted under MCL 712A.2d; MSA
27.3178(598.2d), sentencing or disposition shall be made as
provided in MCL 712A.18(l)(n); MSA 27.3178(598.18)(1)(n). In
deciding whether to enter an order of disposition, or impose
or delay imposition of sentence, the court shall consider all
the following factors, giving greater weight to the
seriousness of the offense and the juvenile's prior record:
(1) the seriousness of the alleged offense in terms of
community protection, including but not limited to, the
existence of any aggravating factors recognized by the
sentencing guidelines, the use of a firearm or other
dangerous weapon, and the effect on any victim;
(2) the culpability of the juvenile in committing the alleged
offense, including, but not limited to, the level of the
juvenile's participation in planning and carrying out the
offense and the existence of any aggravating or
mitigating factors recognized by the sentencing
guidelines;
(3) the juvenile's prior record of delinquency including, but
not limited to, any record of detention, any police
record, any school record, or any other evidence
indicating prior delinquent behavior;
(4) the juvenile's programming history, including, but not
limited to, the juvenile's past willingness to
participate meaningfully in available programming;
(5) the adequacy of the punishment or programming available
in the juvenile justice system;
(6) the dispositional options available for the juvenile.
(B) The court shall enter an order of disposition unless the court
determines that the best interests of the public would be
served by sentencing the juvenile as an adult. The
prosecuting attorney has the burden of proving by a
preponderance of the evidence that, on the basis of the
criteria in subsection (A), it would be in the best interests
of the public to sentence the juvenile as an adult.
(C) Sentencing. If the court determines that the juvenile should
be sentenced as an adult, either initially or following a
delayed imposition of sentence, the sentencing hearing shall
be held in accordance with the procedures set forth in MCR
6.425.
(D) Delayed Imposition of Sentence. If the court determines that
the juvenile should be sentenced as an adult, the court may,
in its discretion, enter an order of disposition delaying
imposition of sentence and placing the juvenile on probation
on such terms and conditions as it considers appropriate,
including ordering any disposition under MCL 712A.18; MSA
27.3178(598.18). A delayed sentence may be imposed in
accordance with MCR 5.956.
(E) Disposition. If the court does not determine that the
juvenile should be sentenced as an adult, the court shall hold
a dispositional hearing and comply with the procedures set
forth in MCR 5.943.
Rule 5.956 Review Hearings; Probation Violation
(A) Review hearings in delayed imposition of
sentence cases.
(1) When required:
If the court entered an order of disposition delaying
imposition of sentence, the court shall conduct a review
hearing to determine whether the juvenile has been
rehabilitated and whether the juvenile presents a serious
risk to public safety.
(a) Time of hearing.
(i) Annual review.
The court shall conduct an annual review of
the probation, including, but not limited to,
the services being provided to the juvenile,
the juvenile's placement, and the juvenile's
progress in placement. In conducting the
review, the court must examine any report
prepared under MCL 803.223; MSA 25.399(223)
and any report prepared by the officer or
agency supervising probation. The court may
order changes in the juvenile's probation on
the basis of the review including, but not
limited to, imposition of sentence.
(ii) Periodic Review.
If an institution or agency to which the
juvenile was committed believes that the
juvenile has been rehabilitated and that the
juvenile does not present a serious risk to
public safety, the institution or agency may
petition the court to conduct a review hearing
at any time before the juvenile becomes 19
years of age or if the court has extended
jurisdiction, any time before the juvenile
becomes 21 years of age.
(iii) Mandatory review.
The court shall schedule a review hearing
to be held within 42 days before the juvenile
attains age 19, unless adjourned for good
cause.
(iv) Final review.
The court shall conduct a final review of
the juvenile's probation not less than 91 days
before the end of the probation period.
(b) Notice of hearing.
Notice of the hearing must be given to the
prosecuting attorney, the agency, or the
superintendent of the institution or facility to
which the juvenile has been committed, the
juvenile, and, if the address or whereabouts are
known, the parent, guardian, or legal custodian of
the juvenile, at least 14 days before the hearing.
The notice shall clearly indicate that the court
may extend jurisdiction over the juvenile or impose
sentence and shall advise the juvenile and the
parent, guardian, or legal custodian of the
juvenile that the juvenile has a right to an
attorney.
(2) Appointment of Attorney.
The court shall appoint an attorney to represent the
juvenile unless an attorney has been retained. The court
may assess the cost of providing an attorney as costs
against the juvenile or those responsible for the
juvenile's support, or both, if the persons to be
assessed are financially able to comply.
(3) Evidence; commitment report.
The court may consider the commitment report prepared
as provided in MCL 803.225; MSA 25.399(225) and any
report prepared upon the court's order by the officer or
agency supervising probation.
(4) Burden of proof; findings.
(a) Before the court may continue
jurisdiction over the juvenile or impose
sentence, the prosecuting attorney must
demonstrate by a preponderance of the
evidence that the juvenile has not been
rehabilitated or that the juvenile
presents a serious risk to public safety.
The Michigan Rules of Evidence, other
than those with respect to privileges, do
not apply. In making the determination,
the court must consider the following
factors:
(i) the extent and nature of the
juvenile's participation in
education, counseling, or work
programs;
(ii) the juvenile's willingness to
accept responsibility for prior
behavior;
(iii) the juvenile's behavior in the
current placement;
(iv) the juvenile's prior record,
character, and physical and mental
maturity;
(v) the juvenile's potential for
violent conduct as demonstrated by
prior behavior;
(vi) the recommendation of the
institution, agency, or facility
charged with the juvenile's care for
the juvenile's release or continued
custody;
(vii) any other information the
prosecuting attorney or the juvenile
may submit.
(b) Before the court may impose a sentence
at the final review hearing, the court
must determine that the best interests of
the public would be served by the
imposition of a sentence provided by law
for an adult offender. In making the
determination, the court must consider
the following factors, in addition to the
criteria specified in subrule (4)(a):
(i) the effect of treatment on the
juvenile's rehabilitation;
(ii) whether the juvenile is likely to
be dangerous to the public if
released;
(iii) the best interests of the public
welfare and the protection of public
security.
(5) Sentencing credit
If a sentence of imprisonment is imposed, the juvenile
shall receive credit for the time served on
probation.
(B) Violation of probation in delayed imposition of
sentence cases.
(1) Subsequent Conviction.
If a juvenile placed on probation under an order of
disposition delaying imposition of sentence is found by
the court to have violated probation by being convicted
of a felony or a misdemeanor punishable by imprisonment
for more than 1 year, or adjudicated as responsible for
an offense that if committed by an adult would be a
felony or a misdemeanor punishable by imprisonment for
more than 1 year, the court shall revoke probation and
sentence the juvenile to imprisonment for a term that
does not exceed the penalty that could have been imposed
for the offense for which the juvenile was originally
convicted and placed on probation.
(2) Other violations of probation. If a
juvenile placed on probation under an order of
disposition delaying imposition of sentence is
found by the court to have violated probation
other than as provided in subrule (B)(1), the
court may impose sentence or may order any of
the following for the juvenile:
(a) a change in placement;
(b) community service;
(c) substance abuse counseling;
(d) mental health counseling;
(e) participation in a vocational-
technical program;
(f) incarceration in the county jail for
not more than 30 days if the present
county jail facility would meet all
requirements under federal law and
regulations for housing juveniles and if
the court has consulted with the sheriff
to determine when the sentence will begin
to ensure that space will be available
for the juvenile. If the juvenile is
under 17 years of age, the juvenile must
be placed in a room or ward out of sight
and sound from adult prisoners;
(g) other participation or performance as
the court considers necessary.
(3) Hearing. The probation violation
hearing must be conducted pursuant to MCR
5.944(C).
(4) Sentencing credit. If a sentence of
imprisonment is imposed, the juvenile must
receive credit for the time served on
probation.
Rule 5.992 Rehearings
(A) Time and Grounds. Except for the case of a juvenile tried
as an adult in the probate court for a criminal offense, a
[A] party may seek a rehearing or new trial by filing
a written motion stating the basis for the relief sought
within 21 days after decision of disposition or supplemental
disposition. The court may entertain an untimely motion for
good cause shown. A motion will not be considered unless it
presents a matter not previously presented to the court, or
presented but not previously considered by the court, which,
if true, would cause the court to reconsider the case.
(B)-(F) [Unchanged.]
Boyle, J., dissents from the adoption of MCR 5.956(A)(4),
because no statute places the burden of proof on the prosecutor in
hearings conducted under this subsection.
Weaver, J., joins in the dissent of Boyle, J.
STAFF COMMENT: The April 8, 1997, amendments of subchapter 5.900
of the Michigan Court Rules implement recent statutory changes
applicable to the juvenile division of the probate court. See,
e.g., 1996 PA 247, 1996 PA 248, 1996 PA 255, 1996 PA 259, and 1996
PA 262. The amendments are based on proposals submitted by the
Juvenile Court Rules Committee of the Probate Judges Association.
These temporary amendments will remain in effect until further
order of the court, and will be reconsidered after receipt of
comments.
The staff comment is published only for the benefit of the bench
and bar and is not an authoritative construction by the Court.