Rule 6.445 - Probation Violation and Revocation(A) Issuance of Summons; Warrant. The court may issue a bench warrant or summons upon finding probable cause to believe that a probationer has committed a nontechnical violation of probation. The court must issue a summons, rather than a bench warrant, upon finding probable cause to believe a probationer has committed a technical violation of probation unless the court states on the record a specific reason to suspect that one or more of the following apply: (1) The probationer presents an immediate danger to himself or herself, another person, or the public.(2) The probationer has left court-ordered inpatient treatment without the court's or the treatment facility's permission.(3) A summons has already been issued for the technical probation violation and the probationer failed to appear as ordered. An arrested probationer must promptly be brought before the court for arraignment on the alleged violation.
(B) Arraignment on the Charge. At the arraignment on the alleged probation violation, the court must (1) ensure that the probationer receives written notice of the alleged violation,(2) inform the probationer whether the alleged violation is charged as a technical or nontechnical violation of probation, and the maximum possible jail or prison sentence,(3) advise the probationer that (a) the probationer has a right to contest the charge at a hearing, and(b) the probationer is entitled to a lawyer's assistance at the hearing and at all court proceedings, including the arraignment on the violation/bond hearing, and that a lawyer will be appointed at public expense if the probationer wants one and is financially unable to retain one,(4) if requested and appropriate, refer the matter to the local indigent criminal defense system's appointing authority for appointment of a lawyer,(5) determine what form of release, if any, is appropriate, and(6) subject to subrule (C), set a reasonably prompt hearing date or postpone the hearing.(C) Scheduling or Postponement of Hearing. The hearing of a probationer being held in custody for an alleged probation violation must be held within the permissible jail sentence for the probation violation, but in no event longer than 14 days after the arrest or the court must order the probationer released from that custody pending the hearing. If the alleged violation is based on a criminal offense that is a basis for a separate criminal prosecution, the court may postpone the hearing for the outcome of that prosecution.(D) Continuing Duty to Advise of Right to Assistance of Lawyer. Even though a probationer charged with probation violation has waived the assistance of a lawyer, at each subsequent proceeding the court must comply with the advice and waiver procedure in MCR 6.005(E).(E) The Violation Hearing. (1) Conduct of the Hearing. The evidence against the probationer must be disclosed to the probationer. The probationer has the right to be present at the hearing, to present evidence, and to examine and cross-examine witnesses. The court may consider only evidence that is relevant to the violation alleged, but it need not apply the rules of evidence except those pertaining to privileges. The state has the burden of proving a violation by a preponderance of the evidence.(2) Judicial Findings. At the conclusion of the hearing, the court must make findings in accordance with MCR 6.403 and, if the violation is proven, whether the violation is a technical or nontechnical violation of probation.(F) Pleas of Guilty. The probationer may, at the arraignment or afterward, plead guilty to the violation. Before accepting a guilty plea, the court, speaking directly to the probationer and receiving the probationer's response, must(1) advise the probationer that by pleading guilty the probationer is giving up the right to a contested hearing and, if the probationer is proceeding without legal representation, the right to a lawyer's assistance as set forth in subrule (B)(3)(b),(2) advise the probationer of the maximum possible jail or prison sentence for the offense,(3) ascertain that the plea is understandingly, voluntarily, and accurately made, and(4) establish factual support for a finding that the probationer is guilty of the alleged violation and whether the violation is a technical or nontechnical violation of probation.(G) Sentencing. If the court finds that the probationer has violated a condition of probation, or if the probationer pleads guilty to a violation, the court may continue probation, modify the conditions of probation, extend the probation period, or revoke probation and impose a sentence of incarceration pursuant to law. The court may not sentence the probationer to prison without having considered a current presentence report and may not sentence the probationer to prison or jail (including for failing to pay fines, costs, restitution, and other financial obligations imposed by the court) without having complied with the provisions set forth in MCR 6.425(B) and (D).(H) Review. (1) In a case involving a sentence of incarceration under subrule (G), the court must advise the probationer on the record, immediately after imposing sentence, that (a) the probationer has a right to appeal, if the underlying conviction occurred as a result of a trial, or(b) the probationer is entitled to file an application for leave to appeal, if the underlying conviction was the result of a plea of guilty or nolo contendere.(2) In a case that involves a sentence other than incarceration under subrule (G), the court must advise the probationer on the record, immediately after imposing sentence, that the probationer is entitled to file an application for leave to appeal.Amended May 25, 2016, effective 9/1/2016; last amended effective 12/14/2016; amended March 25, 2021, effective 3/24/2021; amended September 22, 2021, effective 1/1/2022; amended November 17, 2021, effective 3/1/2022.