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Habitual Time Limits No Longer Apply to Repeat Felony Offenders

Sep 30th, 2016 Felony Offenses

If you are charged with a felony in Michigan, and have another felony conviction anywhere in the country, then the state will file a habitual notice to seek an enhanced sentence.  In other words, if you have a prior felony conviction then the state will attempt to have that used against you at sentencing.

Basically, the way it works is this; felony cases in Michigan start at the district court.  After the preliminary hearing is either held or waived, the case is sent to or “bound over” to the circuit court.  The first thing that happens at the circuit court is the arraignment.  If you have another felony conviction, then at the circuit court arraignment your attorney will be provided with a habitual notice.  The purpose of the notice is to let you know that the maximum sentence on your charge will be raised depending on the number of your prior felony convictions.  You can be a habitual second or third and so forth, all the way up to fourth.  No matter how many priors you have, the habitual can only go up to fourth.

Each time your habitual goes up, the underlying maximum sentence goes up with it.  So, for a second habitual offense the maximum sentence is raised to one and half times the underlying maximum.  Here’s how it works; let’s say you are charged with a five-year felony, like a drunk driving third offense.  If you have a prior felony, then the maximum possible sentence is not five years but seven and a half years.

According to the Michigan court rules dealing with criminal procedure, the habitual notice must be provided to you within 14 days of the circuit court arraignment.  However, the rule has now been modified, making this 14-day notice pretty much meaningless.  Now, like so many other time requirements, there is no meaningful remedy or recourse if the prosecutor misses this 14 day time requirement.

The new Michigan Court rule 6.112 now specifically states that missing the 14-day time limit is “harmless error.”  Specifically, the rule says:

Absent a timely objection and a showing of prejudice, a court may not dismiss an information or reverse a conviction because of an untimely filing or because of an incorrectly cited statute or a variance between the information and proof regarding time, place, the manner in which the offense was committed, or other factual detail relating to the alleged offense.

If you are charged with a felony in Michigan and have prior felony convictions, you should discuss this with your lawyer.  Then, if the habitual notice is filed outside the 14-day time limit, your lawyer should be prepared to show how the late notice had a negative impact (prejudiced) your ability to defend the charges.