Common Crimes
Information on crimes that are commonly charged in Michigan. If you need legal assistance, please contact a lawyer.
Possession of a Financial Transaction Device without Consent
Statute: MCL 750.157n
Crime Group: Property
Sentence Class: H
Minimum Sentence: 0 Months
Maximum Sentence1: 48 Months (4 Years)
Jury Instructions: MCJI2d 30.3
Sex Offender Registration Required: No
Statutory Language:
(1) A person who steals, knowingly takes, or knowingly removes a financial transaction device from the person or possession of a device holder, or who knowingly retains, knowingly possesses, knowingly secretes, or knowingly uses a financial transaction device without the consent of the device holder, is guilty of a felony.
(2) A person who knowingly possesses a fraudulent or altered financial transaction device is guilty of a felony.
Discussion:
A defendant is guilty of “Possession of a Financial Device without Consent” in Michigan if they have taken, stolen, removed, retained, hidden, possessed, or used someone else’s financial device without the permission of the rightful owner. In plain English, this is the kind of crime that results when someone steals or uses a credit/debit card belonging to someone else.
For the prosecution to obtain a conviction on this charge, the following must be proven beyond a reasonable doubt: first, that the defendant possessed, retained, stole removed, hid, or used the financial device; second, that the defendant did so knowingly; third, that the defendant did so without the consent of the device-holder; and finally, that the defendant had the intent to defraud or cheat someone. It is important to note the defendant does not have to intend to defraud or cheat the device-holder: intent to defraud or cheat anyone is sufficient.
While the last element of the crime is broad, it is still the most difficult element for the prosecution to prove. In some instances, the prosecution may allow a defendant to plea to an Attempt to Possess a Financial Device without Consent. This lower charge is known as a “high court misdemeanor”: it is a felony for some purposes (such as scoring of sentencing guidelines on future felony charges), but is a misdemeanor for other purposes (federal firearms law, employment applications, etc.). The maximum sentence on the “attempt” charge is 24 months (two years).
In some cases, a defendant who is between the ages of 17 and 21 (or between 21 and 24 years of age with approval from the prosecutor) may be eligible for sentencing under the Holmes Youthful Trainee Act (“HYTA”, MCL 762.11). HYTA is a deferred sentencing program that recognizes that when people are young, they often make stupid mistakes that should not haunt them for the rest of their lives. If a defendant is sentenced under HYTA, the court allows the defendant to offer a guilty plea, but takes the plea “under advisement” without entering it as a conviction. The court will then place the defendant on probation for a term set by the court. A defendant who successfully completes the probation will have all charges dropped and no public record of the offense will remain. However, a defendant who does not successfully complete the HYTA probation will have his/her probation revoked, the conviction will be entered, and a new (usually harsher) sentence will be imposed without a trial. HYTA status may be granted by a judge as many times as the judge wants; there is no “one per lifetime” limitation (although many judges do have a “one HYTA” policy).
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. For these reasons, the sentence of two defendants charged with the exact same crime can be vastly different, even under similar circumstances.
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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