St. Joseph Michigan Criminal Defense Blog

FacebookTwitterGoogle+Share
print shrink enlarge
criminal defense attorney in Van Buren County

New Case Clarifies Relationship Between Conduct and Restitution Awards

criminal defense attorney in Van Buren County

A recent opinion issued by the Michigan Court of Appeals has clarified the standard governing the relationship between a criminal offense and the restitution the defendant must provide. If you or someone you know has been accused of a criminal offense that involves restitution, contact the Peter J. Johnson Law Office, PLLC, a leading criminal defense attorney in Van Buren County.

Restitution, a requirement for a convicted defendant to reimburse his or her victim for their losses is an issue in many, if not most, criminal cases. Appellate cases involving restitution have provided insight into the nature and extent of restitution and the evidentiary standards for establishing restitution. However, in Michigan and across the United States, most criminal cases are settled by plea agreements, not trials, and convictions based on such agreements often lead to difficulties in establishing restitution awards. For example, during plea negotiations, the prosecution will often agree to dismiss certain charges against the defendant or to recommend a particular sentence in exchange for that defendant’s guilty plea to another offense, along with his or her agreement to provide restitution to the victim.

In People v Bryant, a recent Michigan Court of Appeals decision, the defendant was originally charged with several offenses, including Home Invasion in the Second Degree and Possession of a Firearm During the Commission of a Felony (“Felony-Firearm”). The charges stemmed from a break-in involving the defendant, and surveillance footage of the victim’s home showed the defendant leaving with several stolen items, including two guns. The defendant eventually reached a plea agreement with the prosecution, under which the prosecution agreed to a five-year sentence and to dismiss the Home Invasion charge, in exchange for the defendant’s guilty plea to the Felony-Firearm charge, and his agreement to pay $1,000 in restitution to the victim as reimbursement for her insurance deductible. The defendant pled guilty to the Felony-Firearm offense, and in his plea he admitted to stealing only one of the two guns and did not mention any of the other stolen items. Soon after, the defendant file a motion to correct an invalid sentence, arguing that the trial court should only have ordered restitution for the loss from the theft of a single gun, because that was the extent of what he confessed to doing. The prosecution countered by noting that the defendant had originally been charged with home invasion, and that there was ample evidence available to the court to substantiate the other items the defendant had stolen.

In issuing its opinion, the Michigan Court of Appeals quoted from McKinley, a Michigan Supreme Court case. In People v McKinley, the defendant was ordered to pay a restitution award that was based solely on his uncharged conduct (conduct to which he did not admit and which was not proven in court). The Court held that there must be a direct, causal relationship between a defendant’s conduct and the amount of restitution to be awarded, and that any course of conduct that does not give rise to a conviction may not be relied upon to assess restitution.

Ultimately, the Court of Appeals found substantial factual differences between McKinley and the present case, and it ruled against the defendant in Bryant. Unlike the defendant in McKinley, the defendant herein was not being ordered to pay restitution based solely on uncharged conduct because an essential element of the Felony-Firearm charge was that the firearm must have been obtained or brandished during the commission of a felony. In other words, when he pled guilty to the Felony-Firearm charge, the defendant entitled the Court to consider evidence regarding the underlying Home Invasion charge because the two were “part and parcel”. Furthermore, the Court noted that the laws governing restitution awards specifically permit the presiding court to consider the contents of sentencing reports prepared prior to sentencing, and the defendant’s report clearly indicated that other items had been stolen.

Retaining a lawyer who understands the intricacies of restitution can make a critical difference in reaching a livable settlement with the prosecution. If you or someone you know has been accused of a criminal offense that involves restitution, contact the Peter J. Johnson Law Office, PLLC, a leading criminal defense attorney in Van Buren County at 269.982.1100 or visit http://www.AttorneyPeterJohnson.com

FacebookTwitterGoogle+Share
print shrink enlarge
drug crimes attorney in Cass County

New Decision Offers Guidance on What Constitutes “Plant” Under Medical Marihuana

drug crimes attorney in Cass County
In a recent decision, the Michigan Court of Appeals gave greater clarity to the definition of a plant under the Michigan Medical Marihuana Act. If you or someone you know has been charged with a violation of the Michigan Medical Marihuana Act, contact the Peter J. Johnson Law Office, PLLC, a leading drug crimes attorney in Cass County.

Under the provision of the Michigan Medical Marihuana Act (MMMA), registered “patients” are permitted to either grow their own marijuana plants or to designate another person as a “caretaker” who is permitted to grow the plants for them. In either circumstance, the person growing the plants is subject to strict limits regarding the number of plants that they can maintain at a time – a patient cannot maintain more than 12 marijuana plants for their personal use and a caregiver is only permitted to maintain 12 plants per patient and cannot assist more than five patients with growing their medical marijuana.

If a patient or caregiver is found to be in possession of too many plants, he or she is in violation of the Act, and is subject to criminal penalties. However, the MMMA does not provide an exact definition of what constitutes a “plant”, and this lack of clarity has led to significant confusion regarding the status of “clones”. A clone is a term used to refer to a smaller cutting from a marijuana plant and that, given the proper care and conditions, can eventually become a viable marijuana plant. The practice of “cloning” a marijuana plant is quite useful for caregivers growing marijuana plants for their patients because it allows them to skip the germination period that is often required when starting a plant and because it allows them to quickly propagate especially desirable or healthy plants.

In People v Ventura, a recent Michigan Court of Appeals decision, the court considered for the first time whether such clones can be considered “plants” under the MMMA. In that case, the defendant was registered under the Act as both a patient and a caregiver for another patient, meaning that he was entitled to possess up to 24 plants. However, when police searched his house, they discovered that in addition to 21 marijuana plants, he possessed 22 clones that had been placed in “grow material”. In its decision, the Michigan Court of Appeals first noted that the MMMA did not explicitly provide a definition of a “plant”. It then sought to determine the ordinary use of the word by reviewing the dictionary definition of “plant,” but found that this definition provided little, if any, clarity.

Because the Court could not find any previous Michigan cases that spoke to this issue, it sought guidance from judicial opinions rendered in other jurisdictions. Ultimately it settled on a relatively simple test that it found in a federal case, United States v. Edge. Edge involved the sentencing of a federal defendant based on the number of marijuana plants he possessed. In Edge, the Sixth Circuit Court of Appeals concluded that a “marijuana cutting” (such as a clone), is a plant for federal sentencing purposes if there is readily observable evidence of root formation. In support of this test, the Sixth Circuit Court of Appeals stated that such a definition is in sync with the common use of the word “plant” and also found that the test would provide clarity because of how easy it was to apply.

Ultimately these justifications also proved compelling to the Michigan Court of Appeals, which adopted the Edge test. Applying this test to the facts in Ventura, the Court noted that the plants police had seized from the defendant had “hair-like fibers growing off the main root, with those fibers visible to the naked eye”. Because these root structures were “readily observable”, the Court found that the defendant possessed 43 marijuana plants and upheld his conviction.

Understanding the complex interactions between criminal law and the Michigan Medical Marihuana Act is a difficult task that requires specialized knowledge and constant attention to detail. If you or someone you know has been charged with a violation of the Michigan Medical Marihuana Act, contact the Peter J. Johnson Law Office, PLLC, a leading drug crimes attorney in Cass County at 269.982.1100 or visit http://www.AttorneyPeterJohnson.com.

Blog Directory & Business Pages - OnToplist.com

HONEST. AGGRESSIVE. COMPETENT.