Opinion
ADM File No. 2004-11.
September 14, 2004.
On order of the Court, this is to advise that the Court is considering an amendment of Rule 6.445 of the Michigan Court Rules. Before determining whether the proposal should be adopted, changed before adoption, or rejected, this notice is given to afford interested persons the opportunity to comment on the form or the merits of the proposal or to suggest alternatives. The Court welcomes the views of all. This matter will be considered at a public hearing. The notices and agendas for public hearings are posted on the Court's website at www.courts.michigan.gov/supremecourt.
Publication of this proposal does not mean that the Court will issue an order on the subject, nor does it imply probable adoption of the proposal in its present form.
[Additions are indicated by underlining and deletions are indicated by strikeover.]
Rule 6.445 Probation Revocation
(A) — (G) [Unchanged.]
(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 at a contested hearing 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) [Unchanged.]
Staff Comment: The proposed amendments of MCR 6.445(H)(1)(a) and (b) would require a sentencing judge to convey to a probationer whose probation is revoked that he or she is entitled to appeal by right only where the probationer's underlying conviction occurred as the result of a trial. Where the underlying conviction resulted from a plea of guilty or nolo contendere, the probationer would not be entitled to appeal by right, even where the revocation resulted from a contested hearing.
The staff comment is not an authoritative construction by the Court.
A copy of this order will be given to the Secretary of the State Bar and to the State Court Administrator so that they can make the notifications specified in MCR 1.201. Comments on this proposal may be sent to the Supreme Court Clerk in writing or electronically by January 1, 2005, at P.O. Box 30052, Lansing, MI 48909, or MSC_clerk@courts.mi.gov. When filing a comment, please refer to ADM File No. 2004-11. Your comments and the comments of others will be posted at www.courts.mi.gov/supremecourt/resources/administrative/index.htm.