Q: If I violate felony probation (In Michigan), can I receive more time for the violation than the underlying charge?
For instance, I received probation for committing a first degree retail fraud that has a maximum penalty of 5 years in prison. Prosecutor added a 4th habitual offender enhancement to it raising the maximum penalty to 20 years. My minimum sentencing guidelines for the retail fraud with 4th degree habitual are 12-48 months (which is a straddle cell sentence and why I received probation instead of prison). In violating this probation, I am subject to a revocation of probation as well as prison time. If I receive prison time, do my minimum sentencing guidelines still exist or can the judge sentence me to a flat 20 years for the violation and disregard the minimum sentencing guidelines?
A:
The guidelines continue to be relevant for sentencing. You are right that you've subjected yourself to another sentencing. The judge will take into account your properly scored guidelines at the time of your original sentence, any time you served, and the nature of the probation violation. Guidelines are advisory, meaning that the judge can sentence you under, at, or above the guidelines, depending on valid reasons. Judges set minimum sentences; statute, usually, determines the maximum amount of time you can spend in prison (commonly called "maxing out"). Because 20 years is the maximum time you can serve, the judge cannot set a minimum sentence that's more than about 12.5 years due to what's commonly known as the Tanner 2/3rds Rule, but obviously that would be an extreme departure from the guidelines and subject to appeal. More realistically, you are looking at something between 12-48 months, which could land you in prison.
There is a whole lot more to sentencing, including the recommendation of your probation officer. I would say you can reasonably expect jail at a minimum, and hope against a prison term. But you'll really need to consult with an attorney who knows your record and the allegations.
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