Trial, sentencing and habitual offender in Michigan

Among others, you have the right to a jury trial, to be presumed innocent, to make the prosecutor prove guilt beyond a reasonable doubt, to have witnesses against you appear and be questioned, to have the court order your witnesses to appear, to remain silent without that silence being used against you, and to testify if you want to. MCR 6.302(B)(3) lists these, and MCR 6.401 and 6.410 govern the jury.

You also have the right to a lawyer at all court proceedings, appointed if you cannot afford one. The decision to testify is yours, made after talking with your lawyer. If you do not testify, you have the right not to have that silence used against you. The prosecutor carries the burden of proof, and you do not have to present any evidence. You may ask for a jury or, with the prosecutor's consent and court approval, waive a jury and have a judge decide the case. A jury verdict must be unanimous. You also have the right to a speedy trial under MCR 6.004(A) and to discovery under MCR 6.201. These rights are why the plea rules require the judge to confirm you are giving them up knowingly.

Authority: MCR 6.302; MCR 6.401; MCR 6.410; MCR 6.005; MCR 6.004; MCR 6.201. Reviewed Oct. 27, 2026.

You have the right to a jury, and you may waive it and be tried by the judge only with the prosecutor's consent and the court's approval (MCR 6.401). A jury has 12 jurors unless the parties stipulate to fewer with the court's consent, and under MCR 6.410(B) a jury verdict must be unanimous.

If the parties want a jury of fewer than 12, the court must personally tell you that you have a right to 12 jurors, make sure you understand that right, and find that you voluntarily give it up. The stipulation and that colloquy must be done in open court on a verbatim record, and the court may refuse the stipulation in the interest of justice if it states its reasons. A unanimous verdict means the jurors must agree on the verdict, so a jury that cannot agree does not return a conviction, although the prosecutor may be able to try the case again. Whether to choose a bench trial is a strategic decision that depends on the facts, the legal issues, and who the judge is. The facts and the law should be reviewed with you before you decide.

Authority: MCR 6.401; MCR 6.410. Reviewed Oct. 27, 2026.

Jurors are questioned in voir dire to find grounds for challenges for cause and to help the parties use peremptory challenges. Under MCR 6.412(E), each defendant gets 5 peremptory challenges. If an offense is punishable by life imprisonment, a defendant tried alone gets 12, and jointly tried defendants get fewer each depending on how many are tried together. The prosecutor gets the same number as a defendant tried alone, or, when defendants are tried jointly, the total of all the defendants' challenges.

The court may examine the jurors itself or let the lawyers do it, and if the court examines, the lawyers must be allowed to ask further questions or submit them. A juror is subject to challenge for cause on any ground in MCR 2.511(E) or for any other reason recognized by law, and the court excuses the juror on its own initiative or on a party's motion. The court can also let a juror be questioned outside the presence of the other jurors. For good cause shown, the court can grant a party additional peremptory challenges. The scope of voir dire is in the court's discretion, so the questions allowed can vary from judge to judge. Questions are often prepared on issues in the case, such as police credibility, a prior record, or media coverage.

Authority: MCR 6.412. Reviewed Oct. 27, 2026.

There is no single day count for the constitutional right. MCR 6.004(A) gives you and the prosecution a right to a speedy trial and requires dismissal with prejudice if your constitutional right is violated. Courts weigh the length of delay, the reason for it, your assertion of the right, and prejudice to you. Delay is measured from arrest, and prejudice is presumed after eighteen months.

People v Williams, 475 Mich 245, applies those four factors and says that after a delay of eighteen months or more, prejudice is presumed and the burden shifts to the prosecution to show there was no injury. A delay of that length is not an automatic dismissal, because the other factors, especially who caused the delay, also count. Delay you request or agree to is typically weighed against you. Asserting the right early, in writing, helps. Separate rules apply to people held in jail (MCR 6.004(C), a release rule after 180 days for felonies and 28 days for misdemeanors) and to people already in prison on another sentence (the 180-day rule, discussed in separate answers). The court must also give preference to trying in-custody defendants over other criminal cases, and criminal cases over civil cases, as far as practicable. Ask your lawyer to put any speedy trial demand on the record.

Authority: MCR 6.004; People v Williams, 475 Mich 245 (2006). Reviewed Oct. 27, 2026.

If a Michigan prison inmate has an untried charge pending in Michigan, MCL 780.131 and MCR 6.004(D) call for trial within 180 days after the Department of Corrections delivers written notice of the inmate's place of imprisonment and a request for final disposition to the county prosecutor. Under MCL 780.133 and People v Lown, dismissal turns on whether the prosecutor commenced action within those 180 days. Offenses committed in prison or during an escape are exempt.

The Michigan Supreme Court clarified in People v Lown that the dismissal provision, MCL 780.133, turns on whether the prosecutor commenced action within the 180 days, not on whether the trial itself started within that period. The 180 days are consecutive, beginning the day after the prosecutor receives the notice. If the prosecutor commenced action and proceeded promptly toward readiness for trial, the rule is satisfied unless initial steps were followed by inexcusable delay beyond the period and an evident intent not to bring the case to trial promptly. If action was not commenced in time, MCL 780.133 provides that no court has jurisdiction and the charge must be dismissed with prejudice. Under Lown, this is a loss of personal jurisdiction rather than subject-matter jurisdiction, so the defendant can waive it. The statute is triggered by the Department of Corrections notice, so the notice date and the docket entries after it are the first things to check.

Authority: MCL 780.131; MCL 780.133; People v Lown, 488 Mich 242 (2011); MCR 6.004. Reviewed Oct. 27, 2026.

Generally yes, in the way MCR 6.004(C) describes, after excluded delays are subtracted. If you have been incarcerated 180 days or more on a felony, or 28 days or more on a misdemeanor, for the same crime or one based on the same conduct or episode, you must be released on personal recognizance unless the court finds by clear and convincing evidence that you are likely to fail to appear or to present a danger to anyone.

The periods exclude certain delays, so the count is not just calendar days. Excluded delays include other proceedings concerning you, such as competency, pretrial motions, interlocutory appeals, and trials of other charges; periods when you are not competent; delay from an adjournment requested or consented to by your lawyer; delay from an adjournment requested by the prosecutor, but only if the prosecutor shows on the record that material evidence was unavailable despite due diligence or that exceptional circumstances justified more time to prepare; a reasonable delay because of a codefendant when there is good cause not to sever; and other delays the court finds justified by good cause, though not docket congestion. This rule is different from the prison-inmate 180-day rule in MCL 780.131. If you are still in jail on a felony after long delay, ask your lawyer to calculate the chargeable days and, if appropriate, move for release.

Authority: MCR 6.004. Reviewed Oct. 27, 2026.

Under MCL 777.21, the court finds the offense category and the offense variables that apply, scores them, and totals the points for an offense variable level. It scores the prior record variables for a prior record variable level. It then finds the offense class and uses the grid where the two levels meet to read the recommended minimum sentence range in months or life.

The guidelines produce a recommended range for the minimum sentence, not the maximum. Since People v Lockridge, 498 Mich 358 (2015), the range is advisory, but the judge must score it and take it into account, and a sentence outside the range is reviewed for reasonableness. The maximum is set by statute for the offense, and a judge sets an indeterminate sentence with a minimum and maximum. MCL 769.34(2)(b) says the court may not impose a minimum sentence that exceeds two-thirds of the statutory maximum. Scoring is where most guidelines disputes occur: offense variables score facts about the offense, and prior record variables score your criminal history, so each point can move you to a different cell on the grid. A probation officer proposes the scoring in the presentence report, and MCR 6.425(C) requires the proposed scoring to accompany it. You and your lawyer can challenge the scoring at sentencing. If more than one offense is involved, each offense is scored separately. The scoring should be reviewed line by line before the hearing and compared with the trial record, the plea record, and the presentence report.

Authority: MCL 777.21; MCL 769.34; MCR 6.425; People v Lockridge, 498 Mich 358 (2015). Reviewed Oct. 27, 2026.

No longer mandatory. In People v Lockridge, the Michigan Supreme Court held that the guidelines scheme violated the Sixth Amendment to the extent judicial fact-finding mandatorily raised the minimum range, and as the remedy made the guidelines advisory only. Under People v Posey, appellate courts review every sentence for reasonableness and proportionality, including one within the range. A judge must still use the guidelines.

MCR 6.425(D)(1)(e) still requires the court, if a sentence is not within the guidelines range, to articulate the reasons justifying that specific departure, and MCR 6.425(C) says the court must use the sentencing guidelines as provided by law. Statutory mandatory minimums are separate and still bind the court. The two-thirds rule in MCL 769.34(2)(b), that the minimum may not exceed two-thirds of the statutory maximum, is part of the statute as well. In practice, the range remains a significant reference point for the judge, for the prosecutor in plea talks, and on appeal. MCL 769.34(10) once told the Court of Appeals to affirm a minimum within the range absent a scoring error or inaccurate information, but People v Posey, 512 Mich 317; 1 NW3d 101 (2023), severed that part, so a sentence within the range is not insulated from review, although it carries a rebuttable presumption of proportionality. If you face a sentence above the range, a sentencing memorandum should give the court concrete reasons, such as treatment, work history, and family circumstances.

Authority: People v Lockridge, 498 Mich 358 (2015); MCR 6.425; MCL 769.34; People v Posey, 512 Mich 317; 1 NW3d 101 (2023). Reviewed Oct. 27, 2026.

It is a written report by a probation officer on your background, the offense, the harm to the victim, restitution needs, the proposed guidelines scoring, and a recommendation. Under MCR 6.425(B), your lawyer (or you, if you have no lawyer) and the prosecutor must get a copy at least two business days before sentencing, and can ask for an adjournment if they do not. You can challenge inaccurate or irrelevant information at sentencing.

The probation officer must also give your lawyer notice and a reasonable opportunity to attend the presentence interview, on request. At sentencing, the court must give each side a chance to explain or challenge information in the report and must resolve challenges, either by making a finding or by saying it will not consider the challenged information. If the court finds merit in a challenge, it orders the probation officer to correct the report, and the probation officer must make sure no prior version is used for classification, programming, or parole purposes. Before imposing sentence, your lawyer may speak, the judge must address you personally so you can speak, the prosecutor may speak, and any victim present may make an impact statement. The court then states the sentence, including the minimum and maximum, jail credit, and the dollar amount of restitution. Read the report carefully before the interview and correct facts early.

Authority: MCR 6.425. Reviewed Oct. 27, 2026.

It raises the maximum penalty for a felony when you have prior felony convictions. With one prior felony, MCL 769.10 allows a maximum up to 1-1/2 times the longest first-offense term. With two or more priors, MCL 769.11 allows up to twice the longest term. With three or more priors, MCL 769.12 allows up to life or up to 15 years, depending on the offense's maximum, and has a 25-year minimum in some serious-crime cases.

The enhancements apply to felony convictions and to attempts to commit felonies, and the prosecutor must file a written notice, discussed in a separate answer. For a fourth-offense enhancement, if the new felony is punishable by a maximum of 5 years or more or by life, the court may sentence up to life, and if the maximum is less than 5 years, up to 15 years. Major controlled substance offenses are sentenced under the Public Health Code instead. The court cannot set a maximum lower than the maximum for a first conviction, and a sentence of years is an indeterminate sentence. Habitual status also changes the sentencing guidelines range and parole eligibility. The notice, your prior record, and the plea offer decide how this plays out, so the notice should be read as soon as it is filed.

Authority: MCL 769.10; MCL 769.11; MCL 769.12. Reviewed Oct. 27, 2026.

Under MCL 777.21(3), the court scores the underlying offense as usual, then increases the upper limit of the recommended minimum range: by 25 percent for a second felony, 50 percent for a third felony, and 100 percent for a fourth or subsequent felony. The lower limit of the range stays the same.

So a habitual offender notice does not just raise the statutory maximum, it also expands the range the judge looks at when choosing the minimum. The offense category, offense class, offense variable level, and prior record variable level are all based on the underlying offense. A fourth-offense notice can double the upper end of the range, which matters a great deal in plea negotiations, because dropping or reducing the notice may be worth as much as a charge reduction. Because the guidelines are advisory after People v Lockridge, the judge is not required to sentence within the enhanced range, but it remains a major reference point. Also, MCL 769.34(2)(b) still caps the minimum at two-thirds of the maximum. The range should be modeled with and without the enhancement before any offer is considered.

Authority: MCL 777.21; People v Lockridge, 498 Mich 358 (2015); MCL 769.34. Reviewed Oct. 27, 2026.

The prosecutor must file a written notice of intent to seek an enhanced sentence within 21 days after your arraignment on the information, or within 21 days after the information is filed if arraignment is waived or eliminated. The notice must list the prior convictions to be relied on and any mandatory minimum that results, and must be filed with the court and served on you or your lawyer.

MCL 769.13 and MCR 6.112(F) set the 21-day window. If you plead guilty or no contest at the arraignment on the information, the prosecutor may file the notice after the plea, within the time allowed. The court may allow the prosecutor to amend the notice before, during, or after trial unless the amendment would unfairly surprise or prejudice you, under MCR 6.112(H), so a defect in the list of priors does not necessarily end the enhancement. The prosecutor must also file written proof of service with the clerk. If the notice is late and not cured, that is an argument against enhancement. Calendar the deadline from the date of the circuit arraignment and have your lawyer check the proof of service.

Authority: MCL 769.13; MCR 6.112. Reviewed Oct. 27, 2026.

Yes, in writing. Under MCL 769.13(4), a defendant who has been given notice may challenge the accuracy or constitutional validity of one or more listed prior convictions by written motion served on the prosecutor. The defendant has the burden of making a prima facie showing that a prior conviction is inaccurate or constitutionally invalid. The judge decides without a jury.

The court decides at sentencing, or at a separate hearing before sentencing, whether the priors exist. The prosecutor can prove a prior with any relevant evidence, including a judgment of conviction, a transcript of a plea or sentencing, a court register of actions, information in the presentence report, or your own statement. You have the right to deny, explain, or refute the evidence and to present relevant evidence before sentence is imposed. If you make the required prima facie showing, the prosecutor must prove by a preponderance of the evidence that the information is accurate or that the prior conviction is constitutionally valid (MCL 769.13(6)). Typical grounds are that the prior was not a felony, that it was a different person, or that a constitutional defect, such as having no lawyer when you were entitled to one, makes the prior invalid. Because a prior conviction that falls out of the notice can lower the enhancement level, certified copies of the underlying records should be obtained early and compared with the notice line by line.

Authority: MCL 769.13. Reviewed Oct. 27, 2026.

Yes, if they qualify. Each habitual offender statute, MCL 769.10, 769.11, and 769.12, counts prior felony convictions or attempts to commit felonies, whether the conviction occurred in Michigan or would have been a felony or attempt in Michigan if obtained here. The new offense must be a felony committed in Michigan.

That means a conviction from another state or federal court can count if the same conduct would be a felony under Michigan law. It does not count simply because the other state called it a felony. A Michigan conviction counts if it was a felony or an attempt. The statutes also say a conviction cannot be used to enhance a sentence under these sections if it was already used to enhance a sentence under a statute that prohibits further enhancement. For third and fourth offenses, the statutes refer to any combination of felonies. Out-of-state records can be hard to obtain, and the prosecutor has to prove them, which is one reason notices are sometimes amended. The out-of-state offense elements need to be compared with the Michigan statute to see whether it would be a felony here.

Authority: MCL 769.10; MCL 769.11; MCL 769.12. Reviewed Oct. 27, 2026.

Under MCL 769.12(1)(a), if you have three or more prior felony convictions, the new felony is a listed serious crime, or conspiracy to commit one, and one or more of the priors is a listed prior felony, the court shall sentence you to a minimum of not less than 25 years. Not more than one conviction from the same transaction counts as a prior for this subsection.

The statute defines serious crime as a specific list of offenses against a person, including certain murder, assault, kidnapping, armed robbery, carjacking, and criminal sexual conduct offenses, and defines listed prior felony by a separate, longer list that includes certain drunk-driving, drug, assault, home invasion, robbery, and other offenses. Because the lists are specific, whether a case qualifies depends on the exact statute numbers of the new charge and the priors. If the 25-year minimum does not apply, a fourth-offense habitual still carries the enhanced maximum of up to life or up to 15 years under MCL 769.12(1)(b) and (c). The prosecutor must still file the written notice within 21 days after the arraignment on the information, and any mandatory minimum must be stated in it under MCR 6.112(F). Under MCL 769.12(4), a person sentenced under these sections generally cannot be paroled before the minimum term. Check the lists against your charge early.

Authority: MCL 769.12; MCR 6.112. Reviewed Oct. 27, 2026.