CrimeScene--450x267Common Crimes

Information on crimes that are commonly charged in Michigan. If you need legal assistance, please contact a lawyer.

 

Felonious Assault

Statute: MCL 750.82
Crime Group: Person
Sentence Class: F
Minimum Sentence: 0 Months
Maximum Sentence1: 48 Months (4 years)
Maximum Fine: $2,000.00
Jury Instructions: MCJI2d 17.9
Sex Offender Registration Required: No

Statutory Language:

(1) Except as provided in subsection (2), a person who assaults another person with a gun revolver, pistol, iron bar, club, brass knuckles, or other dangerous weapon without intending to commit murder or to inflict great bodily harm less than murder is guilty of a felony punishable by imprisonment for not more than 4 years or a fine of not more than $2,000.00, or both.

(2) A person who violates subsection (1) in a weapon free school zone is guilty of a felony punishable by 1 or more of the following:
     (a)  Imprisonment for not more than 4 years
     (b) Community service for not more than 150 hours
     (c) A fine of more more than $6,000.00

Discussion:

A felonious assault occurs when one person threatens another person with a dangerous weapon. It is not necessary for any actual contact to have occurred. To convict on this charge, the prosecution must prove all elements of the crime beyond a reasonable doubt. This crime requires a showing that: first, the defendant either attempted to commit a battery on another or did an act that would cause a reasonable person to fear an immediate battery; second, that the defendant intended to either injure or make a person reasonably fear an immediate battery; third, that at the time, defendant had the ability to commit a battery, appeared to have the ability, or thought (s)he had the ability; finally, that the defendant committed the assault with a dangerous weapon. (In Michigan, a “battery” is a forceful or violent touching of a person or something that is closely connected with a person, such as their clothing or a car in which they are riding.)

Like other assault crimes, Felonious Assault cases often become “he said, she said” cases in which the jurors make their decision on the basis of the credibility of the witnesses. Other issues often include whether a weapon was used, or if the defendant intended to put the complaining witness in fear.

Occasionally, the prosecution will allow a defendant to plead guilty to the lesser charge of Attempted Felonious Assault. This plea results in a maximum sentence—for a first time offender—of 2 years in prison (although it is rare for a first-time offender to be sent to prison on this charge). It is also possible the prosecution will allow a plea to simple Assault (a misdemeanor with a maximum sentence of 93 days in jail) or Aggravated Assault (a misdemeanor with a one-year maximum jail sentence). There are, of course, no guarantees that the prosecution will allow any kind of plea deal; such negotiations require an attorney and often hinge on the individual circumstances and history of the defendant.

In some cases, where a defendant is at least 17 years of age but less than 21 years of age at the time of the assault (or between 21 and 24 years of age with approval from the prosecutor), (s)he may be eligible for sentencing under the Holmes Youthful Trainee Act (“HYTA”) (MCL 762.11). HYTA allows for a deferred sentence, meaning that a defendant will receive the status of “youthful trainee.” Upon a successful completion of the trainee probation, all charges will be dropped and no public record of the charge will appear. If the defendant does not successfully complete probation, a conviction will enter without a trial and the defendant is re-sentenced.

A defendant convicted under this statute will typically be sentenced according to the Michigan sentencing guidelines. Because these guidelines consider both the nature of the current crime and the past record of the defendant—and because the guidelines are “advisory only” and judges are not required to follow them—it is impossible to predict a likely sentence without taking a look at the specific facts of a defendant’s case and reviewing the past record of a defendant, and even then such predictions are an “educated guess” at best.

1Maximum sentence shown is for a first-time felony offender. Prior felonies make a defendant liable for “Habitual Offender” (“HO”) sentencing enhancement. Thus, for a defendant with one prior felony or attempted felony (“HO2”), the maximum sentence raises to 72 months (6 years); for a defendant with two prior felonies or attempted felonies (“HO3”), the maximum sentence raises to 96 months (8 years); and a defendant with three or more prior felonies or attempted felonies (“HO4”) faces a maximum sentence of 15 years.
 

 

 

 

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