Jail Sentences For Felony Convictions

A recent published decision of the Court of Appeals leaves some unanswered questions concerning jail sentences and felony convictions.  Is a jail sentence still available for a first-offense (i.e., non- habitual offender) felony conviction?  The answer is yes, although there are some important qualifications.

In People v Pinson, ___ Mich App ___ (Docket No. 356624, 4/7/22), the Court of Appeals held that a stand-alone jail sentence for the felony offense of criminal sexual conduct (CSC) in the third degree with a sentencing guidelines range of 21 to 35 months was an unavailable and illegal sentence. The Court was persuaded by a combination of factors:  the sentencing guidelines range, which recommended a prison cell, the newly revised definition of “intermediate sanction” that no longer permits a jail sentence, the crime itself, which does not permit probation, and the indeterminate sentencing statute, MCL 769.8(1).

With reference to the indeterminate sentencing statute, the Court seemed to believe that the statute requires an indeterminate prison term for a first-offense felony conviction: “MCL 769.8(1) requires the imposition of an indeterminate sentence for first-time felony offenses that are punishable by a term of imprisonment.” Pinson, slip op at 1. “To summarize, the indeterminate sentencing statute, MCL 769.8(1), requires a court to impose an indeterminate sentence with a minimum and a maximum term when a defendant is convicted for a first-time felony and the violated statute provides for imprisonment in a state prison.”  Pinson, slip op at 7.
Those broad statements, unnecessary to the question before the court, are suspect. As an initial matter, the Court was correct that, when an indeterminate sentence is imposed, there must be a minimum and maximum term. MCL 769.9(2) provides that “[if the sentence imposed by the court is for any term of years, the court shall fix both the minimum and maximum of that sentence in terms of years or fraction thereof . . . .”

The Court of Appeals nevertheless failed to acknowledge that an indeterminate sentence is not the only sentencing option for a first-offense felony. According to the indeterminate sentence statute, an indeterminate sentence consists of a minimum and maximum term, but it is not always required:  “When a person is convicted for the first time for committing a felony and the punishment prescribed by law for that offense may be imprisonment in a state prison, the court imposing sentence shall not fix a definite term of imprisonment, but shall fix a minimum term, except as otherwise provided in this chapter.” MCL 769.8(1).  Within that same chapter, jail sentences are expressly recognized under MCL 769.28: “Notwithstanding any provision of the law to the contrary, if a person convicted of a crime or contempt of court is committed or sentenced to imprisonment for a maximum of 1 year or less, the commitment or sentence shall be to the county jail of the county in which the person was convicted and not to a state penal institution.” Whether MCL 769.28 constitutes an exception to the indeterminate sentencing statute remains to be seen, but its placement in the same chapter is noteworthy.

The Court of Appeals also failed to mention MCL 750.506, a statute that provides for a jail sentence of up to six months for first-offense felony convictions with a maximum penalty of five years or less: 

Sec. 506. OPTIONAL JAIL SENTENCE FOR FIRST OFFENDERS CONVICTED OF FELONIES - -Whenever any person shall be convicted of a first offense herein declared to be a felony, punishable by imprisonment for a term of not more than 5 years, the court may instead of imposing the sentence provided, sentence such convicted person to the county jail for a period not to exceed 6 months.

See also MCL 750.414 (sentencing judge is authorized to impose a jail term of not more than three months for a first-offense conviction of unlawful use of an automobile, a two-year misdemeanor). Endnote 1

Likewise, the attempt statute permits imprisonment “in the state prison [for] not more than 5 years or in the county jail [for] not more than 1 year” for attempts to commit life offenses and attempts to commit an offense with a maximum penalty of five years or more.  MCL 750.92, paragraph 2.

As well, the Court of Appeals failed to acknowledge the existence of a determinate two-year prison sentence for felony-firearm under MCL 750.227b. That sentence does not violate the indeterminate sentencing provisions of the Michigan Constitution and presumably does not violate the indeterminate sentencing statute. See People v Cooper, 236 Mich App 643; 660-664; 601 NW2d 409 (1999) (a determinate prison sentence for felony-firearm does not violate Const 1963, art 4, § 45 because that section merely provides that the Legislature “may” provide for indeterminate sentences and nothing precludes a system of indeterminate and determinate sentences).

The Court also failed to account for incarceration in a county jail as a condition of probation. According to MCL 771.3(2)(a), a court may require a probationer to “[b]e imprisoned in the county jail for not more than 12 months . . . .” In fairness, this option was unavailable to Mr. Pinson who was convicted of CSC third degree and the Court noted this. See MCL 771.1. (specifying offenses for which probation may not be imposed, including CSC third degree).

Yet the Court of Appeals was correct that the current definition of “intermediate sanction” no longer includes a stand-alone jail sentence. See 2020 PA 395, amending MCL 769.31 (eff. 3/24/21). In isolation, this legislative change might appear to preclude a jail sentence for a felony offense that is controlled by the statutory sentencing guidelines. This conclusion would be inaccurate for three reasons.

First, and as indicated previously, a probationary sentence may include a jail term. The definition of “intermediate sanction” continues to include the option of a probationary sentence “with any probation conditions required or authorized by law.” MCL 769.31(b)(ii). Jail as a condition of probation is authorized under MCL 771.3(2)(a) (as a condition of probation a court may require the probationer to “[b]e imprisoned in the county jail for not more than 12 months . . . .”).

Second, and as previously indicated, the Legislature has provided for an optional jail sentence as an alternative to prison for low-level felony offenses with a maximum penalty of five years or less. MCL 750.506. It has also provided for jail as a punishment for high level attempts. Again, this would not help Mr. Pinson, but these would be available options for many first-offense felony offenders.

Finally, the Court of Appeals did not address what appears to be the elephant in the room: the express authorization of a jail sentence for intermediate sanction cells and straddle cells in MCL 769.34. The Legislature may have removed jail from the definition of “intermediate sanction” in MCL 769.31, but it authorized jail as an available sentencing option in the form of a departure from an intermediate sanction range and as a condition of probation with a straddle cell under MCL 769.34(4): 

(4) Intermediate sanctions must be imposed under this chapter as follows:

(a) If the upper limit of the recommended minimum sentence range for a defendant determined under the sentencing guidelines set forth in chapter XVII is 18 months or less, the court shall impose an intermediate sanction unless the court states on the record reasonable grounds to sentence the individual to incarceration in a county jail for not more than 12 months or to the jurisdiction of the department of corrections for any sentence over 12 months.

(b) If an attempt to commit a felony designated in offense class H in part 2 of chapter XVII is punishable by imprisonment for more than 1 year, the court shall impose an intermediate sanction upon conviction of that offense absent a departure.

(c) If the upper limit of the recommended minimum sentence exceeds 18 months and the lower limit of the recommended minimum sentence is 12 months or less, the court shall sentence the offender as follows absent a departure:

(i) To imprisonment with a minimum term within that range.
(ii) To an intermediate sanction with or without a term of jail incarceration of not more than 12 months.  [Emphasis supplied.]

The above statute, moreover, is contained within the same chapter as the indeterminate sentencing statute. In other words, when the indeterminate sentencing statute speaks of setting a minimum term in prison “except as otherwise provided in this chapter,” two very significant exceptions are for departures from an intermediate sanction cell and jail as a condition of probation with a straddle cell.

In sum, contrary to the overly broad language in Pinson, the Legislature has authorized a jail sentence, at times with probation and at times standing alone, for a number of first-offense (i.e., non-habitual offender) felony convictions. Endnote 2 Any reading of Pinson or MCL 769.8(1) to the contrary would appear to be incorrect.

by Anne Yantus
Copyright Anne Yantus 2022
Michigan Sentencing PLLC

Anne Yantus is a sentence consultant, working with court-appointed and retained attorneys to promote more favorable sentencing outcomes.  Anne credits her knowledge of Michigan sentencing law to the many years she spent handling plea and sentencing appeals with the State Appellate Defender Office.  Following her time with SADO, Anne taught a criminal sentencing course at University of Detroit Mercy School of Law and subsequently continued to write and speak on felony sentencing law while serving as pro bono counsel with Bodman PLC.  Anne welcomes your Michigan felony sentencing questions and is happy to arrange a no-cost consultation for court-appointed attorneys using available Michigan Indigent Defense Commission funds.


1. Sec. 414. Any person who takes or uses without authority any motor vehicle without intent to steal the same, or who is a party to such unauthorized taking or using, is guilty of a misdemeanor punishable by imprisonment for not more than 2 years or a fine of not more than $1,500.00.  However, in case of a first offense, the court may reduce the punishment to imprisonment for not more than 3 months or a fine of not more than $500.00. However, this section does not apply to any person or persons employed by the owner of said motor vehicle or anyone else, who, by the nature of his or her employment, has the charge of or the authority to drive said motor vehicle if said motor vehicle is driven or used without the owner's knowledge or consent.  [MCL 750.414.]

2. Indeterminate sentencing was authorized for habitual offenders with a 1978 amendment to MCL 769.10, 11 and 12.  See People v Smith, 106 Mich App 310, 313; 308 NW2d 176 (1981), and 1978 PA 77, §1