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Warner Norcross + Judd LLP is a corporate law firm with over 230 attorneys serving clients in nine offices throughout Michigan. Among the largest law firms in Michigan, Warner works in virtually all areas of business law.

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A misdemeanor that is not scorable under the prior record variables (PRV) of the sentencing guidelines (MCL 777.55) is still considered when applying the “10-year gap rule” (MCL 777.50).  Under 10-year gap rule, if the defendant remains conviction-free for a period of at least ten years since discharge from the defendant’s last conviction until the commission of his or her next offense, those prior convictions are not scored.  In <em><a href="http://publicdocs.courts.mi.gov:81/OPINIONS/FINAL/COA/20160602_C327430_38_327430.OPN.PDF" target="_blank" rel="noreferrer noopener">People v. Butler</a></em>, No. 327430, the Court of Appeals clarified that a misdemeanor conviction that is too minor to be scored under a PRV, still counts as a conviction for the purposes of determining whether a defendant has a 10-year period without any convictions.

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Defendant plead guilty to second-degree home invasion for an offense committed in May 2014.&nbsp; Defendant had an extensive criminal record going as far back as 1984, but he did not acquire any new convictions between 2001 and 2012, except for a minor misdemeanor conviction in 2006.&nbsp; Without counting the minor misdemeanor conviction, the defendant’s advisory sentencing range would have been 12 to 24 months.&nbsp; But the trial court did count the minor misdemeanor conviction, resulting in an advisory sentencing range of 29 to 57 months.&nbsp; The Court of Appeals agreed with the trial court’s scoring, holding that MCL 777.50 and MCL 777.55 served different purposes and did not need to be read together, and affirmed the trial court’s ruling.

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The <a href="http://publicdocs.courts.mi.gov:81/OPINIONS/FINAL/COA/20160602_C327430_39_327430D.OPN.PDF" target="_blank" rel="noreferrer noopener">dissent</a> argued that MCL 777.50 and MCL 777.55 served the same general purpose of placing limitations on what convictions can be scored to make sentences proportional to the offense and the defendant’s criminal history.  As such, Judge Gleicher proposed that the two statutes be read consistently, so that a conviction that is too minor to be scored under PRV is also too minor to interrupt an otherwise “clean” 10-year gap period.

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A misdemeanor conviction not scored under PRV, still destroys the 10-year conviction-free period

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A misdemeanor conviction not scored under PRV, still destroys the 10-year conviction-free period

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