Under Michigan law (MCL 769.13) a defendant can be charged as an habitual offender if he has been previously convicted of one or more felonies. If defendant has one prior felony conviction he be charged as an habitual second offender, if defendant has two prior felony convictions he can be charged as an habitual third offender, and if has three or more prior felonies he can be charged as an habitual fourth offender. These serve as sentencing enhancers and increase the maximum penalty for the underlying offense.
Being charged as an habitual offender increases the possible maximum penalty for the main offense you are charged with. If charged as an habitual second offender– the maximum penalty is increased by 25%, habitual third offender– the maximum penalty is increased by 50%, habitual fourth offender– the maximum penalty is doubled or increased by 100%. For example, if you are charged with possession of cocaine, you normally face a maximum sentence of four years in prison. If charged as an habitual second offender, that penalty increases to six years, eight years as an habitual third offender, and 15 years as an habitual fourth offender. If the underlying offense you are charged with has a maximum penalty of 15 years or more and you are charged as an habitual fourth offender, it increases the maximum penalty to life in prison. Habitual offender notices can have a serious impact on the outcome of your case and plea negotiations.
Prosecutors are required by statute to give timely notice to the defendant that they will seek an enhanced sentence by adding the habitual offenses to the charge or charges in the complaint. The prosecutor must provide written notice of the intent to add habitual offense notices to the complaint within 21 days of the defendant being arraigned on the information or complaint. If the arraignment is waived, it must be filed within 21 days of the filing of the underlying offense.
Proving the Prior Conviction
If the defendant is disputing the validity of the prior offenses, upon filing a motion the defendant can request the court to require the prosecution to offer proof of the prior offenses by a preponderance of the evidence either at the time of or sometime prior to sentencing. This can be done in one of several ways:
- A copy of the judgment of conviction
- A transcript of a prior trial, plea hearing, or sentencing
- A copy of the register of actions
- Information contained in a presentence investigation report (PSI)
- An admission by the defendant
Sometimes prosecutors receive inaccurate information such as a charge that was dismissed or pled down to a lesser charge or a charge that is incorrectly listed as a felony conviction. Sometimes convictions will get confused with a defendant with the same or similar name. Birth dates and criminal tracking numbers can be good ways to dispute those.
How Prior Offenses Effect Your Case
Being charged as an habitual offender effects your case in several ways. Not only does it make your case more severe by increasing the penalty, but it gives the prosecutor more bargaining power. For example, if you are charged with possession of cocaine, a lot of prosecutors will offer a plea to the lesser charge of cocaine use (a misdemeanor downgraded from a four-year felony) as an enticement to avoid trial. If the same defendant is charged with cocaine possession as an habitual offender, then the prosecutor can merely offer to drop the habitual offenses (“habs”) or lower the amount of habs and still plead guilty to the felony charge. Being charged as an habitual offender can often mean the difference from walking away with a felony or misdemeanor conviction. It makes negotiations much tougher. It also increases the likelihood of going to prison or going to prison much longer if you run the gambit of going to trial and lose.
What Type of Offenses Count for Habituals?
Any conviction for a felony or attempted felony counts. Even if the attempted felony is punishable by up to one year in jail. For example, there are several two-year felonies that can be pled down to one-year crimes but can be counted as an attempted felony for purposes of the habitual offender notices. The two-year felonies count as well.
Can out-of-state convictions be counted? Yes, they can. The problem arises sometimes when the punishment or classification isn’t identical to Michigan’s. For example, what may be a felony in Michigan may be a misdemeanor in another state or vice-versa. That makes it increasingly difficult, if not nearly impossible to decide if or how to charge the defendant. Many times prosecutors will simply not add the out-of-state convictions as habs in those instances because it’s too ripe for challenge.
Being charged with a felony is bad enough, but being charged as an habitual offender makes it much worse. That’s why it is more important than ever to have an experienced criminal attorney representing you to negotiate effectively or challenge the prior convictions or the notice of the prior conviction. Call Austin Legal Services, PLC today at (517) 614-1983 to speak to our Michigan criminal defense lawyer.
Defending criminal charges throughout Michigan in the counties of: Ingham, Eaton, Clinton, Jackson, Shiawassee, Washtenaw, Livingston, Barry, Kent, Gratiot in the cities of: Lansing, East Lansing, Mason, Okemos, Haslett, Bath, St. Johns, Charlotte, Jackson, Corunna, Ann Arbor, Grand Rapids, Brighton, Howell, Ithaca.