STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 6658

August 27, 1990

CRIMINAL LAW:

Parole--imposition of oversight fees pursuant to MCL 791.236a; MSA 28.2306(1)

CRIMINAL LAW:

Probation--imposition of oversight fees pursuant to MCL 771.3c; MSA 28.1133(3)

Pursuant to MCL 771.3c; MSA 28.1133(3), probation oversight fees may be imposed only upon probationers convicted of a felony; an offense constitutes a felony within the meaning of this section if the statute establishing that offense authorizes a penalty of one year in prison or more and the Legislature has not expressly provided that the offense shall be considered a misdemeanor or "high misdemeanor."

MCL 771.3c; MSA 28.1133(3), does not require or permit a court to impose a probation oversight fee upon an individual who has been placed on delayed sentence status.

MCL 771.3c; MSA 28.1133(3), does not require or permit a court to impose a probation oversight fee upon a youth who has been assigned "youthful trainee" status under the Youthful Trainee Act.

Probation and parole oversight fees may not be collected from offenders from other states who are being supervised in Michigan under the provisions of the interstate compact on probation and parole.

Probation and parole oversight fees must be imposed upon probationers and parolees from Michigan who will serve their probation or parole in another state pursuant to the interstate compact on probation and parole.

The Legislature has required the courts and the Parole Board to impose oversight fees, respectively, in each order of probation for a felony and in each order of parole even if this may result in a single individual being required to pay multiple oversight fees; if, in the judgment of the court or the Parole Board, the individual probationer or parolee will not be able to pay the oversight fee, the court or Parole Board may order the individual to perform up to 10 hours of community service in lieu of paying the oversight fee.

Mr. Robert Brown, Jr.

Director

Department of Corrections

Grandview Plaza

P.O. Box 30003

Lansing, Michigan 48909

You have requested my opinion on a series of questions all of which concern the imposition of probation and parole oversight fees pursuant to 1989 PA 184 and 185.

As you note in your request, these newly enacted provisions require that probation and parole oversight fees be imposed upon each felony probationer and parolee sentenced or paroled in the State of Michigan. These fees are then used to defray some of the expenses of operating the probation and parole programs.

1989 PA 184 added a new provision to Chapter XI of the Code of Criminal Procedure, governing orders of probation imposed upon convicted felons. The new provision, MCL 771.3c; MSA 28.1133(3), provides in pertinent part:

1989 PA 185 added a similar provision to 1953 PA 232, the Act governing the Department of Corrections. Subsection (1) of the new section, MCL 791.236a(1); MSA 28.2306(1)(1), provides:

Subsection (2) of MCL 791.236a; MSA 28.2306(1), sets forth the circumstances under which the parole board may order a parolee to perform community service in lieu of paying the oversight fee. It is essentially identical to the provisions of MCL 771.3c(2); MSA 28.1133(3)(2), supra.

The primary rule of statutory construction is to ascertain and give effect to the intention of the Legislature. City of Grand Rapids v Crocker, 219 Mich 178, 182; 189 NW 221 (1922). "Where the statute is plain and unambiguous in its terms, the courts have nothing to do but to obey it.... The fair and natural import of the terms employed, in view of the subject matter of the law, is what should govern...." Jones v Grand Ledge Public Schools, 349 Mich 1, 9; 84 NW2d 327, 331 (1957), quoting with approval from People v Blodgett, 13 Mich 127, 167 (1865). With these principles of statutory construction in mind, your questions may be addressed in the order in which they were asked.

I. HIGH MISDEMEANORS

Your first question concerns the application of MCL 771.3c; MSA 28.1133(3), to persons convicted of "high misdemeanors." Specifically, you ask:

Michigan's Penal Code defines both "felony" and "misdemeanor," but does not define the term "high misdemeanor." The term "felony," as used in the Penal Code, "shall be construed to mean an offense for which the offender, on conviction may be punished by death, or by imprisonment in state prison." MCL 750.7; MSA 28.197. "Misdemeanor," in turn, is defined by MCL 750.8; MSA 28.198, as follows:

The underscored language demonstrates the Legislature's intent to make the terms "felony" and "misdemeanor" mutually exclusive.

Recognizing that the underlying offense may not be expressly identified in the statute as either a felony or a misdemeanor, the Michigan Court of Appeals has held that:

Thus, if the offense in question carries a penalty of one year in prison or more, it constitutes a felony unless the Legislature has expressly provided that the offense shall be considered a misdemeanor or "high misdemeanor."

In answer to your first question, therefore, it is my opinion that, under the express provision of MCL 771.3c(1); MSA 28.1133(3)(1), probation oversight fees may be imposed only upon probationers convicted of a felony. It is also my opinion that an offense constitutes a felony within the meaning of this section if the statute establishing that offense authorizes a penalty of one year in prison or more and the Legislature has not expressly provided that the offense shall be considered a misdemeanor or "high misdemeanor."

II. DELAYED SENTENCE STATUS

Your second question involves persons who have been placed on delayed sentence status. You ask:

With the exception of defendants convicted of certain specific offenses, MCL 771.1(1); MSA 28.1131(1), authorizes a court to place a convicted defendant on probation if the court concludes that the defendant is not likely to commit another crime and "the public good does not require that the defendant shall suffer the penalty imposed by law...." If the court is uncertain whether the defendant meets these criteria, MCL 771.1(2); MSA 28.1131(2), provides a second option:

This provision was construed as follows by the Court of Appeals in People v Leonard, 144 MichApp 492, 495; 375 NW2d 745 (1985):

MCL 771.3c; MSA 28.1133(3), by its express terms, applies only to an "order of probation for a defendant convicted of a felony...." As the Court observed in Leonard, supra, a deferred sentencing is "not equivalent to" an order of probation and, indeed, is not actually a sentence at all.

It is my opinion, therefore, in response to your second question, that MCL 771.3c; MSA 28.1133(3), does not require or permit a court to impose a probation oversight fee upon an individual who has been placed on delayed sentence status.

III. YOUTHFUL TRAINEE STATUS

Your third question concerns persons assigned youthful trainee status:

The Youthful Trainee Act permits a court to assign youths "youthful trainee" status, when they are "alleged to have committed a criminal offense, other than murder in the first degree or a major controlled substance offense, ... between [their] seventeenth and twentieth birthdays," MCL 762.11; MSA 28.853(11). The Act further provides:

See also, OAG, 1973-1974, No 4774, p 53, 55-56 (June 15, 1973).

As observed above, in response to your second question, MCL 771.3c; MSA 28.1133(3), applies only to an "order of probation for a defendant convicted of a felony." (Emphasis added.) Because youthful trainee status may not be deemed to be a conviction, MCL 771.3c; MSA 28.1133(3) is inapplicable.

It is my opinion, therefore, in response to your third question, that MCL 771.3c; MSA 28.1133(3), does not require or permit a court to impose a probation oversight fee upon a youth who has been assigned "youthful trainee" status under the Youthful Trainee Act.

IV. INTERSTATE COMPACT ON PROBATION AND PAROLE

Your fourth question contains two inquiries regarding the effect of the interstate compact on probation and parole upon the imposition of oversight fees. You ask:

The first part of your fourth question asks whether oversight fees must be collected from probationers and parolees sentenced by other states who are residing in Michigan pursuant to the interstate compact.

MCL 771.3c(1); MSA 28.1133(3)(1), mandates the imposition of a probation oversight fee only when a Michigan court enters an "order of probation for a defendant convicted of a felony." Similarly, MCL 791.236a(1); MSA 28.2306(1)(1), mandates the imposition of a parole oversight fee only in those instances where the Michigan Parole Board enters an order of parole. Nothing in either of these two provisions purports to govern or affect orders of probation or parole entered by other states. Nor does the interstate compact on probation and parole authorize the Michigan Courts or Michigan's Parole Board to enter orders with respect to individuals who have been placed on probation or parole by another participating state and who are residing here pursuant to the provisions of the compact. It follows, therefore, that probation and parole oversight fees may not be imposed upon probationers and parolees from other states who may be residing in Michigan under the provisions of the interstate compact.

It is my opinion, therefore, in answer to the first part of your fourth question, that probation and parole oversight fees may not be collected from offenders from other states who are being supervised in Michigan under the provisions of the interstate compact on probation and parole.

The second part of your fourth question asks whether oversight fees may be imposed upon probationers and parolees from Michigan who will serve their probation or parole in another state pursuant to the interstate compact.

MCL 771.3c(1); MSA 28.1133(3)(1), clearly mandates that Michigan courts "shall include ..." an oversight fee in "each order of probation...." (Emphasis added.) Similarly, pursuant to MCL 791.236a(1); MSA 28.2306(1)(1), the Parole Board "shall include ..." a parole oversight fee provision "in each order of parole...." (Emphasis added.) Although subsection (2) of each of these sections provides for certain limited exceptions, neither provides an exception for persons who will serve their probation or parole in another state.

It is my opinion, therefore, in response to the second part of your fourth question, that probation and parole oversight fees must be imposed upon probationers and parolees from Michigan who will serve their probation or parole in another state pursuant to the interstate compact on probation and parole.

V. MULTIPLE ORDERS OF PROBATION AND/OR PAROLE

Your fifth and final question concerns persons who may be simultaneously subject to more than one order of probation and/or parole. You ask:

MCL 771.3c(1); MSA 28.1133(3)(1), requires that: "the court shall include in each order of probation for a defendant convicted of a felony ... a probation oversight fee...." (Emphasis added.) Similarly, pursuant to MCL 791.236a; MSA 28.2306(1), "the parole board shall include in each order of parole ... a parole oversight fee...." (Emphasis added.) The word "each," as used in both statutes, clearly indicates the Legislature's recognition that a given individual may be subject to more than one order of probation or parole and, hence, more than one oversight fee.

It is noted, moreover, that each of these statutes authorizes a limitation on the cumulative amount of oversight fees imposed upon an individual probationer or parolee. For example, MCL 771.3c(2); MSA 28.1133(3)(2), provides that an individual may be required to perform up to 10 hours of community service in lieu of paying a probation oversight fee (1) if the "fee would cause the probationer's combined court ordered payments to exceed 50% of the probationer's monthly net income ..." or (2) if "it appears to the court that the probationer is not able, or will not be able, to pay the probation oversight fee...." MCL 791.236a(2); MSA 28.2306(1)(2), contains a similar provision in the case of parole oversight fees. These provisions give the courts and the Parole Board the discretion to assure that the oversight fees imposed upon any one individual will not become unduly burdensome to that individual.

It is my opinion, therefore, in response to your fifth question, that the Legislature has required the courts and the Parole Board to impose oversight fees in each order of probation for a felony and in each order of parole even if this may result in a single individual being required to pay multiple oversight fees. It is also my opinion that, if in the judgment of the court or the Parole Board, the individual probationer or parolee will not be able to pay the oversight fee, the court or Parole Board may order the individual to perform up to 10 hours of community service in lieu of paying the oversight fee.

Frank J. Kelley

Attorney General