PEOPLE v VANDERPOOL

Docket No. 158486. Argued on application for leave to appeal November 6, 2019. 

Decided July 13, 2020. 

 In August 2016, John D. Vanderpool pleaded no contest to possession of less than 25 grams 

of heroin, MCL 333.7403(2)(a)(v), second offense, and to violating probation. On June 24, 2013, 

Vanderpool had been sentenced to a two-year term of probation after pleading guilty to assaulting 

a police officer. Vanderpool’s term of probation expired on June 25, 2015. On September 23, 

2015, a probation officer petitioned the Tuscola Circuit Court to extend Vanderpool’s term of 

probation until June 25, 2016. Without providing Vanderpool notice or a hearing on the petition, 

the court, Amy Grace Gierhart, J., granted the petition and purported to extend Vanderpool’s term 

of probation until June 25, 2016. On December 4, 2015, probation officers conducted a 

compliance check at Vanderpool’s residence and found heroin that Vanderpool admitted belonged 

to him. Vanderpool was arrested on December 30, 2015, when he was again found in possession 

of heroin, and he was subsequently charged with two counts of possession with intent to deliver 

heroin and violating probation. Vanderpool moved to suppress the evidence found during the 

compliance check on the basis that it was not authorized because the circuit court had lacked the 

authority to extend his term of probation after it had expired. The circuit court denied the motion, 

and Vanderpool pleaded no contest to one count of possession of heroin and to violation of 

probation. The Court of Appeals granted Vanderpool’s delayed application for leave to appeal. 

In a split decision, the Court of Appeals, CAMERON, P.J. (O’CONNELL, J., concurring, and JANSEN,

J., concurring in part and dissenting in part), affirmed Vanderpool’s conviction. 325 Mich App 

493 (2018). The Supreme Court ordered and heard oral argument on whether to grant 

Vanderpool’s application for leave to appeal. 504 Mich 872 (2019). 

 In an opinion by Justice CAVANAGH, joined by Chief Justice MCCORMACK and Justices 

BERNSTEIN and CLEMENT, the Supreme Court held: 

 When read together, MCL 771.2 through MCL 771.6 require the result that after 

Vanderpool’s term of probation expired on June 25, 2015, the circuit court no longer had the 

authority to extend his probationary period under MCL 771.5(1) or to amend it under MCL 

771.2(5). On June 25, 2013, the court fixed Vanderpool’s probationary period, as required by 

MCL 771.2(1), at two years; the two-year period ended on June 25, 2015. Under MCL 771.5(1), 

on or before that date, Vanderpool’s probation officer was required to report on his conduct during 

the probationary term. Pursuant to that statute, upon receiving that report, the court would have 

Michigan Supreme Court 

Lansing, Michigan

Syllabus Chief Justice: 

Bridget M. McCormack 

Chief Justice Pro Tem: 

David F. Viviano 

Justices: 

Stephen J. Markman 

Brian K. Zahra 

Richard H. Bernstein 

Elizabeth T. Clement 

Megan K. Cavanagh 

This syllabus constitutes no part of the opinion of the Court but has been 

prepared by the Reporter of Decisions for the convenience of the reader. 

Reporter of Decisions: 

Kathryn L. Loomis 
had the choice to either discharge Vanderpool from probation or extend the probationary period. 

However, Vanderpool’s probation officer did not report on Vanderpool’s conduct on or before the 

two-year term of probation ended on June 25, 2015. Therefore, Vanderpool’s period of probation 

terminated on that date. When Vanderpool’s probation officer sought to extend the probation 

period on September 23, 2015, the court no longer had statutory authority to do so because the 

period had already terminated under MCL 771.5(1) or expired under MCL 771.6. Logically, once 

a period has expired, or come to an end, it cannot be extended. Further, the circuit court’s authority 

to extend the probation period is conditioned under MCL 771.5(1) upon its receiving the report of 

the probation officer, which must be provided to the court “when the probation period terminates”; 

the court’s attempt to extend the probation period several months after it had terminated did not 

align with this statutory language. The court also lacked authority to amend the probationary 

period by extending it after it expired. MCL 771.2(5) allows the court to amend a probation order 

“at any time” while a defendant is under the order of probation. Once the order expired in this 

case, the court could no longer amend it. The Court of Appeals’ reliance on People v Marks, 340 

Mich 495 (1954), in concluding that MCL 771.2(5) and MCL 771.4 require a contrary outcome 

was misplaced. Marks did not address whether the predecessor to MCL 771.2 allowed a probation 

order that had expired to be amended. Marks also relied on Burns v United States, 287 US 216 

(1932), which addressed probation revocation during the period of probation. Burns therefore did 

not dictate the result in this case, in which probation was extended after the probationary term 

expired. Additionally, whether Vanderpool was discharged from probation did not depend on 

whether the court had entered an order discharging him. Vanderpool was discharged from 

probation when the period of probation ended because he was relieved of his duty to comply with 

the terms of probation as of that date. MCL 771.6 recognizes that a probationer is simply 

discharged from probation upon expiration of the probationary period, which does not require any 

action by the court. 

 Reversed and remanded. 

 Justice ZAHRA, joined by Justices MARKMAN and VIVIANO, dissenting, disagreed with the 

majority’s statutory analysis. MCL 771.2(5) permits the circuit court to amend an order of 

probation “at any time,” in contrast to the language of MCL 771.4, which requires that a revocation 

proceeding commence during the “probation period.” The lack of reference in MCL 771.2(5) to 

the defendant’s “probation period” must be considered intentional in light of the Legislature’s use 

of the broader “at any time” language in MCL 771.2(5). Accordingly, MCL 771.2(5) indicates 

that the Legislature did not limit a circuit court’s authority to amend a probation order to the 

“probation period,” and instead, the court may amend an order “at any time” within the statutory 

maximum period of five years, even after the expiration of the originally imposed period of 

probation. The majority’s contrary conclusion relies heavily on the reporting requirement in MCL 

771.5(1) and adds a temporal requirement. A probation officer is not required by the statute to 

furnish to the court a report on the defendant’s conduct during probation at the very moment of 

the defendant’s discharge. Rather, the statute anticipates a sequence of events that occur following 

the termination of the probation period, including the preparation and presentation of the probation 

officer’s report, which necessarily means the court’s jurisdiction extends past the expiration of the 

defendant’s originally imposed period of probation. A defendant is not automatically discharged 

from probation when the probation period expires. MCL 771.2(1) makes clear that a trial court 

maintains jurisdiction over an individual convicted of a felony for up to five years; therefore, 

Vanderpool should have been aware that his order of probation was subject to extension until he 
received an order of discharge from the court. Justice ZAHRA agreed with the Court of Appeals 

that due process did not require that Vanderpool receive notice and an opportunity for a hearing 

before the court extended the order of probation. Although Gagnon v Scarpelli, 411 US 778 

(1973), extends due-process protections to the revocation of probation, the extension of probation 

does not result in the type of loss of liberty that is caused by revocation of parole or probation; 

due-process protections therefore need not be afforded to defendants before probation is extended. 

©2020 State of Michigan 
 FILED July 13, 2020 

S T A T E O F M I C H I G A N 

SUPREME COURT 

PEOPLE OF THE STATE OF MICHIGAN, 

 Plaintiff-Appellee, 

v No. 158486 

JOHN DAVID VANDERPOOL, 

 Defendant-Appellant. 

BEFORE THE ENTIRE BENCH 

CAVANAGH, J. 

While conducting a probation compliance check on defendant John D. Vanderpool’s 

house, a probation agent found heroin. Defendant admitted that the heroin belonged to 

him. A few weeks later, defendant was arrested and was again found in possession of 

heroin. He was charged with two counts of possession with intent to deliver heroin and 

with violating probation. Defendant moved to suppress evidence from the compliance 

check, arguing that the search was illegal because he was not on probation at the time of 

the search, but the circuit court denied the motion. Defendant pleaded no contest to having 

Michigan Supreme Court 

Lansing, Michigan

OPINION Chief Justice: 

Bridget M. McCormack 

Chief Justice Pro Tem: 

David F. Viviano 

Justices: 

Stephen J. Markman 

Brian K. Zahra 

Richard H. Bernstein 

Elizabeth T. Clement 

Megan K. Cavanagh
2

violated probation and to having possessed less than 25 grams of a controlled substance, 

MCL 333.7403(2)(a)(v), second offense. Defendant has appealed, arguing that because he 

was not on probation when his home was searched, the search was unlawful. We agree. 

While the circuit court attempted to extend defendant’s probation before the compliance 

check, because the term of probation had already expired, the court did not have the 

authority to extend it. Consequently, the warrantless search of defendant’s home was not 

justified. Accordingly, we reverse the Court of Appeals’ judgment and remand to the 

Tuscola Circuit Court for further proceedings consistent with this opinion. 

I. FACTS AND PROCEDURAL HISTORY 

Defendant was sentenced to a two-year term of probation on June 25, 2013, after 

pleading no contest to assaulting a police officer. The terms of probation included a 

prohibition on the use or possession of controlled substances and authorization of 

compliance checks permitting probation officers to search his property. The two years 

passed; June 25, 2015, came and went; and defendant’s term of probation expired without 

the circuit court either discharging defendant from probation or extending his probation. 

On September 23, 2015, defendant’s probation officer filed a Petition for Amendment of 

Order of Probation, which requested that defendant’s term of probation be “extended” until 

June 25, 2016, “to allow for the time he was on warrant status as well [as] time to pay his 

Court ordered fines and fees.” The circuit court—without notice or a hearing—granted the 

petition and “extended” defendant’s probation, setting a new expiration date of June 25, 

2016. 
3

The record is unclear whether defendant continued to comply with the terms of his 

probation, or whether he was asked to comply with the terms of his probation, following 

its expiration on June 25, 2015, until its “extension” on September 23, 2015. On November 

12, 2015, however, defendant’s probation officer sought to have him arrested for failing a 

drug screen. On December 3, 2015, another arrest warrant indicated defendant had 

“stopped” reporting to the probation office on a weekly basis, though the order did not 

indicate when he stopped. On December 4, 2015, probation officers conducted a 

compliance check of defendant’s home and found heroin, which defendant admitted 

belonged to him. Defendant was not arrested that day, but was arrested on December 30, 

2015, when a deputy responded to a tip regarding his location and warrant status. At the 

time of his arrest, defendant was again found in possession of heroin, and he was charged 

with two heroin offenses as well as violating probation. 

Defendant moved to suppress the evidence produced in the search, arguing that the 

December 4, 2015 compliance check was not authorized because the circuit court lacked 

the authority to extend his probation after it had expired. The circuit court denied the 

motion, and defendant pleaded no contest to one charge of possession of less than 25 grams 

of heroin, second offense, and to the probation-violation charge. Defendant was sentenced 

to concurrent prison terms of 18 months to 8 years for the heroin conviction and 459 days 

for the probation-violation conviction. 

The Court of Appeals granted defendant’s application for leave to appeal but 

affirmed his convictions in a split decision. People v Vanderpool, 325 Mich App 493; 925 

NW2d 914 (2018). Defendant sought leave to appeal here, and this Court scheduled oral 

argument on the application, directing the parties to address whether the circuit court had 
4

jurisdiction to extend defendant’s probationary term on September 23, 2015, and whether 

the extension of the probationary term without notice and a hearing violated defendant’s 

due-process rights. People v Vanderpool, 504 Mich 872, 872 (2019). 

II. STANDARD OF REVIEW 

This Court reviews de novo questions of both statutory interpretation, People v 

Carter, 503 Mich 221, 226; 931 NW2d 566 (2019), and constitutional law, People v 

Hammerlund, 504 Mich 442, 451; 939 NW2d 129 (2019). 

III. ANALYSIS 

Several statutory provisions are relevant to our analysis in this case. MCL 771.2(1) 

limits the probationary period for a felony to five years.1

 MCL 771.2(5) requires the 

sentencing court to set the period and conditions of probation and allows the court to amend 

the order of probation “at any time”: 

The court shall, by order to be entered in the case as the court directs 

by general rule or in each case, fix and determine the period and conditions 

of probation. The order is part of the record in the case. The court may 

amend the order in form or substance at any time. If the court reduces a 

defendant’s probationary term under subsection (2), the period by which that 

term was reduced must be reported to the department of corrections. 

 

1

 Even under the prosecution’s reading of the statute, defendant would have been 

discharged June 23, 2018. If the only relief defendant sought were discharge from 

probation, this case might be in danger of being rendered moot by the passage of time. 

However, defendant also seeks to have his convictions vacated, arguing that they flowed 

from evidence that was improperly obtained during the compliance check. Further, even 

regarding discharge from probation, the relatively short timelines involved in probation 

cases compared with the often sluggish pace of the appellate process might make this 

situation one that is capable of repetition, yet evading review. See People v Kaczmarek, 

464 Mich 478, 481; 628 NW2d 484 (2001). 
5

The court can revoke probation “during the probation period.” MCL 771.4. The end of 

the probationary period and the probation officer’s duties at that time are directed by MCL 

771.5(1): 

When the probation period terminates, the probation officer shall 

report that fact and the probationer’s conduct during the probation period to 

the court. Upon receiving the report, the court may discharge the probationer 

from further supervision and enter a judgment of suspended sentence or 

extend the probation period as the circumstances require, so long as the 

maximum probation period is not exceeded. 

Finally, MCL 771.6 requires a record of discharge. 

When interpreting a statute, a court’s duty is to “discern the legislative intent that 

may reasonably be inferred from the words expressed in the statute by according those 

words their plain and ordinary meaning.” Sotelo v Grant Twp, 470 Mich 95, 100; 680 

NW2d 381 (2004). Statutory words and phrases are to be “understood according to the 

common and approved usage of the language,” except when a “peculiar” legal meaning 

has attached. MCL 8.3a. The common meaning of statutory words and phrases takes into 

account the context in which the words are used. Krohn v Home-Owners Ins Co, 490 Mich 

145, 156; 802 NW2d 281 (2011). In giving meaning to the statute, “we examine the 

provision[s] within the overall context of the statute ‘so as to produce, if possible, a 

harmonious and consistent enactment as a whole.’ ” People v Cunningham, 496 Mich 145, 

153-154; 852 NW2d 118 (2014), quoting Grand Rapids v Crocker, 219 Mich 178, 182-

183; 189 NW 221 (1922). Statutory provisions “cannot be read in isolation, but instead 

must be read reasonably and in context.” Cunningham, 496 Mich at 154. Reading various 

probation statutes together, we conclude that after June 25, 2015, when defendant’s 

probationary period expired, the circuit court had neither the authority to “extend” 
6

defendant’s probationary period under MCL 771.5(1) nor to “amend” the probationary 

period under MCL 771.2(5). 

The circuit court fixed defendant’s probationary period, as required by MCL 

771.2(1), at two years on June 25, 2013. That two-year period ended on June 25, 2015. 

On or before that date, the probation officer was required to report the termination of the 

probationary period to the circuit court and report on defendant’s conduct during the 

probationary period. MCL 771.5(1). Upon receiving that report, the circuit court would 

have had the choice of discharging defendant or extending the probationary period. Id. 

However, defendant’s probation officer did not notify the circuit court or report on 

defendant’s conduct on or before June 25, 2015. Defendant’s period of probation therefore 

terminated on that date. 

When defendant’s probation officer sought to “extend” defendant’s probationary 

period on September 23, 2015, there was no statutory authority to do so because the period 

had already “terminate[d],” MCL 771.5(1), or “expir[ed],” MCL 771.6. “Terminate” 

means “to form an ending” and “to come to an end in time.” Merriam-Webster’s Collegiate 

Dictionary (11th ed). “Expire” means “to come to an end.” Id. The most relevant 

definition of “extend” is “to cause to be longer[;] prolong.” Id. The order of probation 

was signed on June 25, 2013, and set a two-year term of probation. By its own terms, the 

order of probation ended the period of probation on June 25, 2015. A probationary period 

that has terminated is over. And therefore, logically, once a period has terminated, it cannot 

be made longer (extended). 

Additionally, the circuit court’s authority to “extend” the probationary period is 

conditioned “[u]pon receiving the report” of the probation officer, which must be provided 
7

to the court “[w]hen the probation period terminates.” MCL 771.5(1). The phrase “[w]hen 

the probation period terminates” is unambiguous. “When” means “at or during the time 

that.” Merriam-Webster’s Collegiate Dictionary (11th ed). The circuit court’s attempt to 

extend the probationary period several months after the probation period terminated does 

not align with the statutory phrase “when the probation period terminates.” 

Neither could the circuit court “amend” the order of probation to extend the 

probationary period under MCL 771.2(5). MCL 771.2(5) allows a sentencing court to 

amend an order of probation “in form or substance,” including the term of probation, “at 

any time.” That is, at any time while defendant was under the order of probation, the court 

could have extended the term of probation by amendment. But, just as the court could not 

“extend” an order that had expired, neither could the court “amend” an order that had 

expired. 

The Court of Appeals came to the opposite conclusion, noting the textual differences 

between MCL 771.2(5) and MCL 771.4 and reasoning that we addressed “the exact issue 

now before this Court, albeit under the prior version of the probation statute” in our opinion 

in People v Marks, 340 Mich 495; 65 NW2d 698 (1954). Vanderpool, 325 Mich App at 

497-499 (opinion by CAMERON, P.J.). See also id. at 501 (O’CONNELL, J., concurring). 

The Court’s reliance on Marks was misplaced for two reasons. Marks’s treatment of 

whether a sentencing court has statutory authority to extend a term of probation after the 

term has expired failed to account for the entire statutory scheme. And Marks’s treatment 

of the due-process question relied on general principles that do not require a particular 

outcome in this case. 
8

In Marks, the Court considered whether the sentencing court had “jurisdiction and 

authority to extend the probation period for an additional 2 years and alter the original 

terms of probation to include restitution after the original period of probation had 

expired[.]” Marks, 340 Mich at 498. Marks quoted the statutory predecessors of MCL 

771.2 and MCL 771.3. Id. at 498-499. The predecessor of MCL 771.2 was similar to the 

current statutory text, and the quoted portion of the MCL 771.3 predecessor discussed a 

sentencing court’s authority to impose restitution as a term of probation. Marks, 340 Mich 

at 498-499. Without further discussion of either section, and without any discussion of the 

then-existing version of MCL 771.5, which set forth the same requirements as the current 

version, Marks held that a defendant is not denied due process when restitution is imposed 

as a condition of probation without a hearing. Id. at 499, citing People v Good, 287 Mich 

110; 282 NW 920 (1938). Marks did not explain how the predecessor of MCL 771.2, 

which provided that an order of probation “shall be at all times alterable and amendable, 

both in form and in substance, in the court’s discretion,” meant that a probation order that 

has expired could be amended. Nor did the court address the interplay with MCL 771.5. 

Neither Marks’s unexamined reference to MCL 771.2 nor its reliance on Good’s dueprocess holding controls this case. 

Lastly, Marks quoted at length from Burns v United States, 287 US 216; 53 S Ct 

154; 77 L Ed 266 (1932). See Marks, 340 Mich at 500-501. The defendant in Burns, a 

federal probationer, had his probation revoked during the first year of a five-year 

probationary term, and Burns addressed what procedure was required in order to 

successfully terminate the probationary period. Burns, 287 US at 217-219, 222-223. So, 

Burns addressed probation revocation occurring during the period of probation. Marks’s
9

discussion of Burns also addressed what constitutional procedures, like notice, are required 

to extend probation; those constitutional issues are irrelevant here. Consequently, there is 

no holding from Burns that dictates a result here—where probation has been extended after

the probationary term has expired.2

 

Judge CAMERON reasoned that it was “important” that the circuit court “had not 

entered an order discharging Vanderpool from probation pursuant to MCL 771.6,” but he 

did not elaborate. Vanderpool, 325 Mich App at 499 (opinion by CAMERON, P.J.). We 

cannot see why an expired order of probation can be extended before a defendant’s 

discharge is recorded but not after. Defendant was indeed entitled to have his discharge 

recorded as detailed in MCL 771.6, but the circuit court’s failure to carry out its duty to do 

so did not expand its authority to extend defendant’s term of probation. 

The prosecution takes this further, arguing that defendant was not discharged. This 

is incorrect. Defendant was discharged from probation when the period of probation ended. 

MCL 771.6. “Discharge” means “to relieve of a charge, load, or burden[;] . . . to release 

from an obligation.” Merriam-Webster’s Collegiate Dictionary (11th ed). The order of 

probation set the end of the defendant’s obligations on June 25, 2015. On that day, 

 

2

 Furthermore, the due-process analysis in Marks is dubious given that the United States 

Supreme Court has rejected the rights-privilege distinction that previously dominated legal 

thinking. See, e.g., Morrissey v Brewer, 408 US 471, 481; 92 S Ct 2593; 33 L Ed 2d 484 

(1972) (“[T]his Court now has rejected the concept that constitutional rights turn upon 

whether a governmental benefit is characterized as a ‘right’ or as a ‘privilege.’ ”). See also 

Gagnon v Scarpelli, 411 US 778, 782, n 4; 93 S Ct 1756; 36 L Ed 2d 656 (1973) (“It is 

clear . . . that a probationer can no longer be denied due process, in reliance on the 

dictum . . . that probation is an ‘act of grace.’ ”). But given our disposition of this matter 

on statutory grounds, we do not reach the due-process argument.
10 

defendant was relieved of his charge to comply with the terms of probation, and he was 

therefore discharged. The circuit court’s failure to carry out its obligation to record this 

event and provide defendant with documentation as required by statute does not result in 

defendant having to comply with the expired order. 

The prosecution elaborated at oral argument that the end of the term of probation is 

nothing more than a “control date” or “review date” and probation continues unabated until 

a defendant’s discharge from probation is recorded or a defendant has served the five-year 

statutory maximum. Although a defendant might expect his or her term of probation to 

conclude on the last day of the term as described by the order of probation, the prosecution 

represents that in practice, probation officers often inform defendants to the contrary. But 

this understanding of the probation end date essentially converts every term of probation 

to a five-year term. 

This reading conflicts with the plain meaning of the statute in that an order of 

probation that has expired cannot be amended, as described above. This reading also fails 

to produce a “harmonious and consistent enactment as a whole,” Cunningham, 496 Mich 

at 153-154, because the careful description in MCL 771.5(1) of how a probation period 

should end in either extension or discharge would be little more than a misleading 

suggestion that probation officers and sentencing courts would be free to ignore. Why 

require the trial court to fix an initial period of probation if the court can change the terms 

and length of probation at any time within the five-year maximum; that is, even after that 

initial fixed period has expired? 

The prosecution does not offer any statutory support for the idea that the end of a 

term of probation is merely a “control date” without independent effect. To the contrary, 
11 

MCL 771.2(5) requires the sentencing court to “fix and determine the period and conditions 

of probation,” while MCL 771.2(1) sets an upper limit for felony probationary terms, 

requiring that “the probation period shall not exceed 5 years.” If every term of probation 

were five years, then there would be no period for the sentencing court to “fix and 

determine.” If the period that the sentencing court fixed and determined ended with a mere 

“control date,” then the period being determined would not be the “period . . . of probation” 

because the period of probation would be anything up to five years. Additionally, if the 

prosecution were correct that defendants remain on probation until discharge is recorded 

without regard to the expiration of the period of probation, it is not clear why the period of 

probation would even need to be extended. 

The prosecution is correct that sentencing courts have wide discretion in setting 

terms of probation. See MCL 771.3(2) and (3). Nothing in our holding constrains courts 

from exercising that discretion when setting the period and conditions of probation. And 

courts also have the authority to extend the period of probation through amendment under 

MCL 771.2(5) or at the termination of the period of probation under MCL 771.5(1). They 

simply do not have the authority to extend a probation period that is already over. 

The dissent largely focuses on MCL 771.2(5), which states that a sentencing court 

“may amend the order in form or substance at any time.” The dissent points out that, in 

contrast, the revocation procedure in MCL 771.4 limits a sentencing court’s power to a 

time “during the probation period.” And given that MCL 771.4 includes an explicit 

temporal limitation but MCL 771.2(5) lacks such a limitation, so the argument goes, the 

court must retain the power to amend the terms of probation at any time, even after the 

expiration of the probation period. The only limitation the dissent sees in the sentencing 
12 

court’s power to amend an order of probation is the “statutory maximum period of five 

years.” 

The absence of a temporal limitation in MCL 771.2(5) combined with the presence 

of a temporal limitation in MCL 771.4 is a textual clue relevant to this discussion, to be 

sure. But that textual clue must be weighed in light of the other textual evidence that 

supports our interpretation. Scalia & Garner, Reading Law: The Interpretation of Legal 

Texts (St. Paul: Thomson/West, 2012), p 59 (“The skill of sound construction lies in 

assessing the clarity and weight of each clue and deciding where the balance lies.”). The 

language “at any time” in MCL 771.2(5) indicates that the sentencing court has broad 

power to amend the order of probation. But that power, in light of the statute as a whole, 

as we discussed earlier, is limited to when the order is operative. 

The dissent argues, like the prosecution does, that the order of probation remains 

operative after it has expired because the court has not entered an order of discharge under 

MCL 771.6. The dissent does not explicitly adopt the prosecution’s description of the 

expiration of the order of probation as a mere “control date,” but the logic is the same. In 

the dissent’s view, so long as the statutory maximum period has not yet been met when the 

order of probation expires, nothing happens. 

However, this reading of the statute fails to adequately address the language of MCL 

771.6, which states that “[w]hen a probationer is discharged upon the expiration of the 

probation period, or upon its earlier termination by order of the court, entry of the discharge 

shall be made in the records of the court, and the probationer shall be entitled to a certified 

copy thereof.” MCL 771.6 recognizes that while a court may terminate probation before 

the expiration of the probation period, and conversely, that a court may also extend 
13 

probation before the expiration of the probation period, a probationer is simply discharged 

from probation upon the expiration of the probation period. Nowhere in the language of 

MCL 771.6 is there a requirement that a court act to discharge a probationer upon the 

termination of the original probation period set by the original probation order; a court need 

only act in order to amend that probation order, which otherwise expires according to its 

original terms if there is no timely intervention. 

This reading of MCL 771.6 is not hostile to the language found in MCL 771.5(1). 

As even the dissent recognizes, “when” may be defined in context to refer to “at or during 

the time that” or “upon or after which.” Given the plain language of MCL 771.6, it is the 

first definition of “when” that allows for the most cohesive reading of both MCL 771.5(1) 

and MCL 771.6. MCL 771.6 dictates that a probationer is discharged from probation upon 

the expiration of the original probation period, absent earlier intervention by a court to 

modify the original probation order. MCL 771.5(1) merely acknowledges the reality that 

a probation officer must prepare a report concerning a probationer’s conduct and submit it 

to the court, which relies on that report to make a decision as to whether to amend the order 

before a probationer is discharged upon the expiration of the probation period. In other 

words, the phrase “so long as the maximum probation period is not exceeded” in MCL 

771.5(1) modifies the extent to which a court may extend a probation period if it moves to 

amend the probation order in a timely manner. But MCL 771.6 restricts a court’s ability 
14 

to amend an order to the time before a probationer is automatically discharged upon the 

expiration of the probation period.3

Although the dissent argues that the original order of probation could not have 

expired because defendant failed to fulfill some of his obligations under the order, a 

probationer’s discharge from probation does not eliminate all obligations that were 

previously incurred. Similarly to child support orders that often expire upon a child 

reaching the age of majority, the expiration of such an order merely reflects the lack of 

future obligations but does not impact outstanding obligations that were incurred while the 

order was in effect. 

Further, we reject the idea that a defendant should ignore the face of the order of 

probation, which specifies a fixed term. The idea that nothing happens when an order of 

probation expires conflicts with our direction that an order of probation “must be 

sufficiently clear to enable the probationer to know what he is required to do in order to 

comply with it,” People v Sutton, 322 Mich 104, 109; 33 NW2d 681 (1948), and “specify 

the period during which it is to continue,” Hill v Hill, 322 Mich 98, 103; 33 NW2d 678 

(1948). 

 

3

 The dissent argues that our reading of the statute “strips the trial court of [its] important 

duty” to discharge defendants. We disagree. Here, the sentencing court retained its 

authority to amend the order of probation for the entire period it specified in its own order. 

The sentencing court did fail to carry out the evaluation required by MCL 771.5 “[w]hen 

the probation period terminate[d],” and in doing so allowed the period to expire. The 

sentencing court stripped itself of its duty by failing to address defendant until months after 

his probationary period expired. 
15 

The dissent worries our reading of the statute would be “very difficult, if not 

impossible, to accomplish in practice.” The dissent notes that a probation officer’s report 

must describe the conduct during the probationary period, and that must “necessarily 

include the moments leading right up to termination.” So, in the dissent’s view, the 

probation officer would wait until the last day of the probationary period to write the report, 

then submit the report to the sentencing court, which would consider it at some later date 

past the expiration of the probationary period. We have every confidence that sentencing 

courts can navigate this responsibility.4

In practice, probation officers already perform a very similar, if not more 

burdensome, function in preparing presentence investigation reports for sentencings. 

While all that is required by MCL 771.5(1) is to generally report the termination of 

probation and “the probationer’s conduct during the probation period,” these same 

probation agents comply with much more stringent statutory requirements in preparation 

for sentencing. In addition to a host of specific information that might be compiled ahead 

of sentencing,5

 MCL 771.14 requires an inquiry into “the antecedents, character, and 

circumstances of the person,” MCL 771.14(1), as well as “[a]n evaluation of and a 

prognosis for the person’s adjustment in the community based on factual information 

 

4

 Furthermore, Michigan’s manual for probation officers already instructs them to “review 

the probationer’s file in a timely fashion.” See SCAO, Manual for District Court 

Probation Officers (Dec 2019), § 7-08(B), p 154, available at 

<https://courts.michigan.gov/administration/SCAO/Resources/Documents/Publications/

Manuals/prbofc/prb.pdf> (accessed May 19, 2020). 

5

 See MCL 771.14(2)(a) through (h). 
16 

contained in the report,” MCL 771.14(2)(a). In practice, this includes a defendant’s 

conduct while awaiting sentencing and events that transpire between completion of the 

report and sentencing, which are offered orally to the court. Probation officers can and do 

comply with statutory deadlines.6

 Even supposing the dissent’s analysis were correct, there 

would still be a lot of blanks to fill in. If a probationer’s responsibility to comply with the 

terms of probation did not end when the order of probation indicated it would, it would not 

be clear how the probationer would know when his or her responsibilities ended. If a 

probationer’s term of probation continued past its expiration, and the sentencing court was 

not required to comply with the procedure in MCL 771.5 at that time, it would not be clear 

how long the sentencing court could wait to make a decision. If the only limitation on the 

court’s power to amend an order of probation was the statutory maximum term, it would 

not be clear whether a sentencing court could amend an order of probation even after 

entering an order of discharge. 

For these reasons, the trial court lacked authority to extend defendant’s probation. 

Because defendant was not on probation, officers had no authority to enter his home and 

conduct a warrantless search under the probation exception to the Fourth Amendment. See 

Griffin v Wisconsin, 483 US 868; 107 S Ct 3164; 97 L Ed 2d 709 (1987); US Const, Am 

IV; Const 1963, art 1, § 11. 

 

6

 At any rate, the dissent’s solution of extending the probationary period does not solve the 

problem the dissent imagines. In the dissent’s view, the probationary period would 

continue past the expiration of the original term of probation until the sentencing court 

entered an order of discharge. Probation officers would still have to report on the 

intervening period. 
17 

IV. CONCLUSION 

Because the trial court was without authority to extend defendant’s probation, we 

reverse the judgment of the Court of Appeals and remand the case to the circuit court for 

further proceedings. 

 Megan K. Cavanagh 

 Bridget M. McCormack 

 Richard H. Bernstein 

 Elizabeth T. Clement 
S T A T E O F M I C H I G A N 

SUPREME COURT 

PEOPLE OF THE STATE OF MICHIGAN, 

 Plaintiff-Appellee, 

v No. 158486 

JOHN DAVID VANDERPOOL, 

 Defendant-Appellant. 

ZAHRA, J. (dissenting). 

I respectfully dissent. The issues presented in this case are whether the trial court 

was statutorily permitted to extend defendant’s probationary term after it expired but before 

defendant was formally discharged, and if so, whether due process entitled defendant to 

notice and a hearing before the court did so. I agree with the Court of Appeals that the trial 

court maintained jurisdiction to extend defendant’s probationary term after its expiration, 

because MCL 771.2(5) permits the amendment of a defendant’s order of probation “in form 

or substance at any time.”1

 This is in contrast to the revocation of probation, which must 

take place during the specific “probation period” imposed on a particular defendant 

pursuant to MCL 771.4. In this case, while defendant’s original term of probation had 

expired when the trial court extended it, the trial court never discharged defendant from 

probation, and the court’s one-year extension was within the five-year statutory maximum 

 

1

 Emphasis added. 
2

period prescribed by MCL 771.2(1). The trial court therefore maintained jurisdiction to 

extend defendant’s probationary period after its expiration. 

Defendant’s due-process rights were not violated by this extension. A defendant is 

entitled to the due-process protections of notice and a hearing before a revocation of his or 

her probation. But this case does not involve a revocation of probation. Instead, the trial 

court merely extended the term of defendant’s probation. Probation is a noncustodial 

supervisory period far less onerous to a probationer than the incarceration that generally 

results from the revocation of probation. The mere extension of probation does not 

constitute a “grievous loss” of liberty entitling a defendant to the due-process protections 

requested by defendant. For these reasons, I would affirm the lower courts. 

I. BASIC FACTS AND PROCEEDINGS 

On June 25, 2013, defendant was sentenced to two years’ probation after pleading 

no contest to assaulting a police officer, a felony.2

 The terms of defendant’s probation 

barred the use or possession of controlled substances. Probation agents were also 

authorized to conduct compliance checks and search defendant’s property. 

While on probation, defendant did not consistently report to the probation 

department as directed and did not pay his court-ordered fines and fees. Defendant’s 

probation was due to expire on June 25, 2015, but the trial court did not enter an order 

discharging him from probation at that time. On September 23, 2015, defendant’s 

probation agent filed a petition with the trial court to extend defendant’s probation for one 

year “to allow for the time [defendant] was on warrant status as well [as] time to pay his 

 

2

 MCL 750.81d(1). 
3

Court ordered fines and fees.” The trial court granted the petition and extended defendant’s 

probation to June 25, 2016. 

On November 12, 2015, defendant’s probation agent petitioned the trial court for a 

bench warrant because defendant tested positive for opiates. Defendant was arrested for 

an unspecified offense on November 18, 2015. Notwithstanding the bench warrant issued 

for drug use, defendant was again released on bond and informed to report weekly to the 

probation office. Defendant, however, stopped reporting to the probation office on a 

weekly basis. Another probation-violation warrant was issued on December 3, 2015. On 

December 4, 2015, probation agents conducted a compliance check at defendant’s home 

and found heroin, which defendant admitted belonged to him. 

Defendant asserts that the December 4, 2015 compliance check led to his subsequent 

arrest, when he was again found in possession of heroin. Defendant was charged with 

intent to deliver less than 50 grams of heroin, MCL 333.7401(2)(a)(iv), second or 

subsequent offense, MCL 333.7413(2), and with possession with intent to deliver less than 

25 grams of heroin, MCL 333.7403(2)(a)(v), second or subsequent offense, MCL 

333.7413(2). Defendant was also charged with violating probation. 

Defendant moved to suppress the evidence and for dismissal of the charges. He 

challenged the legality of the December 4, 2015 compliance check, arguing that he was not 

on probation at that time because the trial court lacked the authority to extend his 

probationary period beyond June 25, 2015. The trial court denied defendant’s motion. 

Defendant thereafter pleaded no contest to possession of less than 25 grams of heroin, 

second or subsequent offense, and to the probation violation. On September 29, 2016, the 
4

trial court sentenced defendant to concurrent prison terms of 18 months to 8 years for the 

drug-possession conviction and 459 days for the probation violation. 

The Court of Appeals granted defendant’s application for leave to appeal and 

affirmed defendant’s convictions in a split decision, with the majority relying on People v 

Marks, 340 Mich 495; 65 NW2d 698 (1954), to hold that “the trial court had jurisdiction 

to modify and extend probation up to the statutory maximum term even after [defendant’s] 

original probationary period expired.”3

 Defendant sought leave to appeal in this Court, and 

in lieu of granting leave to appeal, we ordered oral argument on the application, directing 

the parties to file supplemental briefs addressing (1) whether the trial court had jurisdiction 

to extend defendant’s probationary term in September 2015 and (2) whether the extension 

of the probationary term without notice or a hearing violated defendant’s due-process 

rights.4

II. STANDARD OF REVIEW 

We review de novo constitutional issues and matters of statutory interpretation.5

 

3 People v Vanderpool, 325 Mich App 493, 496-499; 925 NW2d 914 (2018). 

4 People v Vanderpool, 504 Mich 872 (2019). 

5 People v Harris, 499 Mich 332, 342; 885 NW2d 832 (2016). 
5

III. ANALYSIS6

A. THE STATUTORY SCHEME PERMITS A TRIAL COURT TO EXTEND A TERM

OF PROBATION AFTER ITS EXPIRATION 

The question presented is whether a trial court maintains jurisdiction to extend a 

defendant’s probationary term after it has expired but before an order is issued discharging 

the defendant from probation. This question is answered by the interpretation of several 

statutes that are relevant to this inquiry. MCL 771.2(1) provides that a probation period 

for a felony conviction “shall not exceed five years.”7

 MCL 771.2(5) provides that the trial 

court may amend an order of probation “at any time:” 

The court shall, by order to be entered in the case as the court directs 

by general rule or in each case, fix and determine the period and conditions 

of probation. The order is part of the record in the case. The court may 

amend the order in form or substance at any time. If the court reduces a 

 

6

 As an initial matter, I question whether the issues presented are properly preserved. It 

appears that defendant did not raise a due-process argument in the Court of Appeals. In 

his application to that court, defendant’s question presented asked only whether he was 

entitled to resentencing because “Tuscola County authorities delayed in petitioning for an 

amendment of probation from June 2015 through September of 2015.” “The failure to 

raise a question in the lower court precludes the Supreme Court considering it on appeal.” 

Young v Morrall, 359 Mich 180, 187; 101 NW2d 358 (1960). In his application to this 

Court, defendant, perhaps inspired by the Court of Appeals dissent, presented only the 

question of whether the Due Process Clause “require[s] that a probationer be given notice 

and an opportunity to be heard on a probation officer’s petition to extend probation[.]” 

Defendant did not present to this Court the question of whether the trial court maintained 

jurisdiction to extend his probationary term after its expiration. Thus, both issues posed 

by this Court’s order directing oral argument are arguably unpreserved. But because this 

Court asked the parties to address both issues, and because the majority resolves this case 

on the merits, I will address the substantive issues in this dissent. 

7

 Defendant’s original conviction for assaulting a police officer is a felony for purposes of 

both the Penal Code and the Code of Criminal Procedure. MCL 750.81d(1); MCL 761.1(f). 
6

defendant’s probationary term under subsection (2), the period by which that 

term was reduced must be reported to the department of corrections.[8] 

MCL 771.4, pertaining to the revocation of probation, provides:

It is the intent of the legislature that the granting of probation is a 

matter of grace conferring no vested right to its continuance. If during the 

probation period the sentencing court determines that the probationer is 

likely again to engage in an offensive or criminal course of conduct or that 

the public good requires revocation of probation, the court may revoke 

probation. All probation orders are revocable in any manner the court that 

imposed probation considers applicable either for a violation or attempted 

violation of a probation condition or for any other type of antisocial conduct 

or action on the probationer’s part for which the court determines that 

revocation is proper in the public interest. Hearings on the revocation shall 

be summary and informal and not subject to the rules of evidence or of 

pleadings applicable in criminal trials. In its probation order or by general 

rule, the court may provide for the apprehension, detention, and confinement 

of a probationer accused of violating a probation condition or conduct 

inconsistent with the public good. The method of hearing and presentation 

of charges are within the court’s discretion, except that the probationer is 

entitled to a written copy of the charges constituting the claim that he or she 

violated probation and to a probation revocation hearing. The court may 

investigate and enter a disposition of the probationer as the court determines 

best serves the public interest. If a probation order is revoked, the court may 

sentence the probationer in the same manner and to the same penalty as the 

court might have done if the probation order had never been made. . . .[9]

MCL 771.5(1) governs the procedure to be followed upon the termination of a 

probationer’s period of probation. It provides: 

When the probation period terminates, the probation officer shall 

report that fact and the probationer’s conduct during the probation period to 

the court. Upon receiving the report, the court may discharge the probationer 

from further supervision and enter a judgment of suspended sentence or 

 

8

 Emphasis added. 

9

 Emphasis added. 
7

extend the probation period as the circumstances require, so long as the 

maximum probation period is not exceeded.[10]

Finally, MCL 771.6, which requires a record of discharge, provides: 

When a probationer is discharged upon the expiration of the probation 

period, or upon its earlier termination by order of the court, entry of the 

discharge shall be made in the records of the court, and the probationer shall 

be entitled to a certified copy thereof. 

Reading these statutes as reasonably as possible, harmoniously, and in their 

entirety,11 I agree with the Court of Appeals that the trial court possessed the authority to 

extend defendant’s originally imposed probationary period after its stated date of 

expiration. 

The language of MCL 771.2(5) pertaining to the amendment of probation orders 

differs significantly from that of MCL 771.4 pertaining to the revocation of probation. 

MCL 771.2(5) states that the “court may amend the [probation] order in form or substance 

at any time.” This broad language, permitting amendment “at any time,” is in contrast to 

the language of MCL 771.4, which requires that a revocation proceeding commence during 

the “probation period.”12 The reference in MCL 771.4 to a defendant’s “probation period” 

 

10 MCL 771.5(1). 

11 People v Cunningham, 496 Mich 145, 153-154; 852 NW2d 118 (2014), quoting Grand 

Rapids v Crocker, 219 Mich 178, 182-183; 189 NW 221 (1922) (“[W]e examine the 

provision[s] within the overall context of the statute ‘so as to produce, if possible, a 

harmonious and consistent enactment as a whole.’ ”). 

12 The “probation period” for purposes of MCL 771.4 “refers to the specific probation term 

that the sentencing court has imposed on a particular defendant,” not the statutory 

maximum term of probation. People v Glass, 288 Mich App 399, 405; 794 NW2d 49 

(2010). 
8

is absent from MCL 771.2(5), an omission that we must consider intentional, especially 

when coupled with the Legislature’s specific use of the broader “at any time” language in 

MCL 771.2(5).13 Thus, we must assume that the Legislature intentionally declined to 

impose in MCL 771.2(5) the temporal limitation referred to in MCL 771.4. Accordingly, 

the Court of Appeals correctly held that a trial court is not confined to the terms of the 

“probation period” when amending probation, which includes the extension of probation. 

Instead, as plainly stated in MCL 771.2(5), a trial court has the authority to amend 

probation “at any time” within the statutory maximum period of five years, even after the 

expiration of the originally imposed period of probation. 

In concluding to the contrary, the majority relies heavily on the requirement in MCL 

771.5(1) that “[w]hen the probation period terminates, the probation officer shall report 

that fact and the probationer’s conduct during the probation period to the court.” The 

majority takes this reporting requirement and engrafts onto it a temporal requirement not 

expressly found in the statute. Specifically, the majority reads this statute to mean that if 

the probation officer does not provide the required report to the trial court before or at the 

very moment that a probation period expires, the trial court loses jurisdiction over the 

probationer to extend the probation period since it has already “terminated” or come to an 

end. The majority’s myopic reading of the law is flawed. Not only would it be odd for a 

probation officer’s inaction to strip a court of jurisdiction, but this interpretation is 

unworkable in practice and contrary to the plain language of the statute. 

 

13 See Farrington v Total Petroleum, Inc, 442 Mich 201, 210; 501 NW2d 76 (1993) 

(“Courts cannot assume that the Legislature inadvertently omitted from one statute the 

language that it placed in another statute, and then, on the basis of that assumption, apply 

what is not there.”). 
9

MCL 771.5(1) does not require that the probation officer furnish his or her report to 

the court before or at the very second a probation period expires. To the contrary, MCL 

771.5(1) anticipates an extension of probation after the expiration of a defendant’s period 

of probation. The first sentence of MCL 771.5(1) says that “[w]hen the probation period 

terminates, the probation officer shall report,” and the second sentence says that “[u]pon 

receiving the report,” the court may discharge the probationer from further supervision or 

extend the probation period. This language makes clear the legislative understanding that 

there is going to be some passage of time between these two events—the termination of 

the probation period and the court’s receipt of the probation officer’s report. The statute is 

written in a manner that contemplates a sequence of events: (1) the termination of the 

probation period, (2) the preparation of a report by the probation officer, (3) the 

presentation of this report to the court, and (4) the court’s discharge of the probationer from 

further supervision or the extension of the probation period. This sequence clearly 

envisions that a court’s jurisdiction extends past the expiration of the defendant’s originally 

imposed period of probation.14

 

14 The majority’s reliance on the definition of “when” as “ ‘at or during the time that’ ” is 

not particularly helpful given that “when” can also be defined in a manner favorable to the 

dissent. (Citation omitted.) Indeed, one of the definitions of “when” is “upon or after 

which; and then.” Random House Webster’s College Dictionary (1992). In other words, 

it is completely reasonable to interpret the language “when the probation period 

terminates” to mean “after the probation period terminates” the probation officer must 

provide the court with a report and then, once the court receives the report, the court can 

either discharge the defendant from probation or extend probation. 

The majority relies on dictionary definitions of the terms “terminate” and “expire” 

to conclude that defendant’s term of probation came to an “end.” But I see no reason why 

a period that has come to an end cannot later be extended. And, as discussed later in this 

opinion, I do not believe that the mere passage of time can permanently “terminate” a 
10 

Additionally, the majority’s reading of MCL 771.5(1) would be very difficult, if not 

impossible, to accomplish in practice. The required report must indicate that the 

defendant’s probation period has terminated, which a probation officer cannot indicate 

until after the probation period has actually terminated. The report must also describe the 

probationer’s conduct during the probation period, which would necessarily include the 

moments leading right up to termination. If the probationer violates a condition of 

probation moments before the period of probation terminates, the probation officer would 

have to include a description of this conduct in his or her report. Simply put, this is an 

impossible task to impose on a rapidly moving, high-volume trial court. A trial court with 

dozens, if not hundreds of probationers cannot be expected to accept a report at the very 

moment that the probationer’s probation period terminates. For these reasons, I find the 

majority’s reliance on MCL 771.5 to be unpersuasive. 

Relatedly, I disagree with the majority’s understanding of an order of “discharge” 

as contemplated by the statutory scheme. The majority, relying on a dictionary defining 

“discharge” to mean “ ‘to relieve of a charge, load, or burden[;] . . . to release from an 

obligation,’ ” concludes that “[d]efendant was discharged from probation when the period 

of probation ended.”15 But the mere expiration of a probation period does not automatically 

 

probation period and result in the automatic discharge of a defendant from probation. 

Indeed, had the Legislature intended an automatic discharge to enter, it would not have 

afforded the sentencing court the opportunity to take other action. Recall that MCL 

771.5(1) permits the sentencing court to either “discharge the probationer from further 

supervision and enter a judgment of suspended sentence or extend the probation period as 

the circumstances require.” (Emphasis added.) 

15 Citation omitted. 
11 

discharge a defendant from probation. If this were the case, there would be no reason for 

MCL 771.5 to require “the court” to “discharge the probationer from further supervision” 

“[u]pon receiving the report.”16 The statute clearly contemplates that it is the court that 

must take the affirmative act of discharging a defendant from probation. The majority also 

opines that the “circuit court’s failure to carry out its obligation to record this event [the 

discharge] and provide defendant with documentation as required by statute does not result 

in defendant having to comply with the expired order.”17 But the issuance of an order 

discharging a defendant from probation is not the ministerial task that the majority makes 

it out to be. Instead, MCL 771.5 requires the trial court to exercise its discretion in 

determining whether discharge is appropriate after receiving the report from the probation 

officer detailing the probationer’s conduct on probation.18 The majority’s conclusion that 

 

16 Emphasis added. 

17 This case does not present to us the question of whether a defendant must comply with 

the conditions of probation imposed in his or her original order of probation during the 

period after the expiration of that order and before its extension. The search that defendant 

claims was unlawful was conducted while defendant was subject to the conditions imposed 

after his probationary period was extended. Therefore, the only question at issue is whether 

the trial court was permitted to extend defendant’s probationary period after its expiration. 

18 It is because of this directive in MCL 771.5 that I am not persuaded by the majority’s 

reliance on MCL 771.6. MCL 771.6 simply requires that a record be made of a discharge. 

It does not purport to set forth the discharge procedure, but instead provides the procedure 

governing what shall happen after there has been a discharge: “entry of the discharge shall 

be made in the records of the court, and the probationer shall be entitled to a certified copy 

thereof.” In contrast, MCL 771.5 provides instructions as to the discharge process itself 

and explicitly indicates that it is the court that must either extend the probation period or 

“discharge the probationer from further supervision.” The reporting requirement in MCL 

771.6 cannot trump the discharge instructions set forth in MCL 771.5. 
12 

the mere passage of time results in a “discharge” strips the trial court of this important 

duty.19

It is also ironic that the majority “reject[s] the idea that a defendant should ignore 

the face of the order of probation,” when defendant did just this by failing to comply with 

the explicit terms of his probation. It is undisputed that defendant failed to consistently 

report to the probation department, and significantly, he did not pay the fines and fees 

required by his order of probation. I am hard-pressed to conclude that defendant would 

reasonably expect to be automatically discharged from a period of probation that he did 

not successfully complete. The majority is correct that courts speak through written orders. 

But defendant’s order of probation did not state that his discharge from probation would 

be automatic upon the expiration of the originally imposed term. Moreover, the trial court 

never “spoke” to defendant through an order of discharge to inform him that he was 

released from his probation obligations.20 Because MCL 771.2(1) makes clear that a trial 

 

19 We must bear in mind that an important purpose of probation is to rehabilitate a 

defendant. See People v Miller, 182 Mich App 711, 713; 452 NW2d 890 (1990) (courts 

may impose conditions of probation under MCL 771.3(4) so long as there is a rational 

relationship between the restriction and rehabilitation). MCL 771.2(5) gives trial courts 

broad discretion to amend and modify probation orders as needed in furtherance of this 

rehabilitation effort. Automatically releasing a probationer from probation without the 

probation officer or trial court examining a probationer’s performance while on probation 

undermines the effort to ensure that he or she has been rehabilitated. 

20 The majority asserts that it “cannot see why an expired order of probation can be 

extended before a defendant’s discharge is recorded but not after.” We are not tasked with 

considering in this case whether a court may extend a term of probation after the court 

discharges a defendant from probation. That is not what happened here. MCL 771.5 

requires a trial court to either extend a term of probation or discharge a defendant from 

probation. The trial court in this case never discharged defendant from probation, so there 
13 

court maintains jurisdiction over an individual convicted of a felony offense for up to five 

years and given that defendant did not successfully complete the terms of his probation, it 

should not have come as a surprise to defendant that his order of probation was subject to 

extension until he received an order of discharge from the court.21

In this case, while defendant’s original probationary period had expired when the 

trial court extended it, the one-year extension was within the five-year statutory maximum 

period prescribed by MCL 771.2(1). The trial court therefore maintained the authority to 

extend defendant’s probationary period after its expiration. The compliance check at issue, 

 

is no question as to whether the court surrendered its jurisdiction over defendant. It did 

not. 

21 I disagree with the majority that this interpretation “essentially converts every term of 

probation to a five-year term.” And I equally disagree with the majority’s statement that 

“[i]f every term of probation were five years, then there would be no period for the 

sentencing court to ‘fix and determine.’ ” A trial court is permitted to impose a five-year 

term of probation for a felony from the outset pursuant to MCL 771.2(1), but may impose 

a lesser term if it believes that this will be sufficient to rehabilitate the defendant. The 

entire reason that MCL 771.2(5) permits amendment of an order of probation “at any time” 

is because the trial court needs flexibility to amend a defendant’s probationary terms and 

conditions depending on the performance of the probationer. It may very well be the case 

that the initial term “fixed and determined” by the court will require no modification, but 

it might also be the case that a defendant is noncompliant with the probationary terms, 

warranting an extension or modification of the initially fixed and determined terms and 

conditions. I do not share the majority’s apparent concern that permitting a court to extend 

a probationary period after its expiration will convert all terms of probation into five-year 

terms. If a trial court has always possessed the authority to impose a five-year term of 

probation from the outset, there is no reason to believe that a court will take advantage of 

the ability to extend a probationary period after its extension to convert every lesser term 

of probation into a five-year term. 
14 

which was conducted after this extension of defendant’s probation period, was lawful under 

the statutory scheme.22

B. DUE PROCESS DOES NOT REQUIRE ADDITIONAL NOTICE AND AN 

OPPORTUNITY TO BE HEARD BEFORE THE EXTENSION OF PROBATION 

Given my conclusion that the statutory scheme permitted the trial court to extend 

defendant’s probationary period after its expiration, I must address whether due process 

required that defendant receive notice and an opportunity to be heard before this extension. 

Both the United States Constitution and the Michigan Constitution of 1963 dictate 

that no person may be deprived of life, liberty, or property without due process of law.23 

In finding a due-process violation in this case, the dissenting Court of Appeals judge relied 

on a couple of cases from the United States Supreme Court.24 In Morrissey v Brewer,

25 the 

Supreme Court concluded that the Due Process Clause of the Fourteenth Amendment 

 

22 My review of the statutory scheme leads to the same result that this Court reached in 

Marks, 340 Mich 495. Although a different version of MCL 771.2 was at issue in Marks, 

the language of the relevant statute was substantially the same. In Marks, 4 months and 14 

days after the expiration of the original period of probation, the trial court extended the 

defendant’s probation for a period of two years and added the condition of restitution. This 

Court held that “defendant’s rights were not impinged by the alteration in the probation 

order made within the statutory 5-year period, even though the conditions of the original 

order had not been violated and its term had expired.” Id. at 501. As this Court explained, 

“[t]he trial judge . . . was at liberty ‘at all times’ within the 5-year period to alter and amend 

the order ‘both in form and in substance.’ ” Id. at 501-502. “The only limitation, and this 

applies to both the grant and any modification of it, is that the total period of probation 

shall not exceed 5 years.” Id. at 501. 

23 US Const Am XIV; Const 1963, art 1, § 17. 

24 See Vanderpool, 325 Mich App at 503-506 (JANSEN, J., concurring in part and dissenting 

in part). 

25 Morrissey v Brewer, 408 US 471; 92 S Ct 2593; 33 L Ed 2d 484 (1972). 
15 

requires that a state afford an individual some opportunity to be heard before revoking his 

or her parole. In reaching this conclusion, the Court “ ‘rejected the concept that 

constitutional rights turn upon whether a governmental benefit is characterized as a “right” 

or as a “privilege,” ’ ” and instead clarified that “[w]hether any procedural protections are 

due depends on the extent to which an individual will be ‘condemned to suffer grievous 

loss.’ ”26 The Court reasoned that the termination of parole “inflicts a grievous loss” 

because while on parole a parolee is able “to do a wide range of things open to persons 

who have never been convicted of any crime,” but, “[i]n many cases, the parolee faces 

lengthy incarceration if his parole is revoked.”27 In determining what process was due, the 

Court held that “[w]hat is needed is an informal hearing structured to assure that the finding 

of a parole violation will be based on verified facts and that the exercise of discretion will 

be informed by an accurate knowledge of the parolee’s behavior.”28 The Court then 

explained the procedures that should apply, including both a preliminary and a final 

revocation hearing.29

In Gagnon v Scarpelli,

30 the Supreme Court of the United States held that the same 

due-process protections that apply to the revocation of parole apply to the revocation of 

probation, noting that the “[p]etitioner does not contend that there is any difference relevant 

 

26 Id. at 481 (citations omitted). 

27 Id. at 482 (quotation marks omitted). 

28 Id. at 484. 

29 Id. at 484-489. 

30 Gagnon v Scarpelli, 411 US 778, 782; 93 S Ct 1756; 36 L Ed 2d 656 (1973). 
16 

to the guarantee of due process between the revocation of parole and the revocation of 

probation, nor do we perceive one.”31

This precedent is meaningfully distinguishable from the case at hand, as the loss of 

liberty that follows the revocation of parole or probation is significantly different than the 

substantially lesser constraint on liberty imposed by the extension of a period of probation. 

Per Morrisey, the pertinent inquiry is whether the extension of probation condemns a 

probationer to suffer “grievous loss” such that due process requires notice and an 

opportunity to be heard. It does not. As the Court explained in Morrissey, a parolee and a 

probationer are able “to do a wide range of things open to persons who have never been 

convicted of any crime.”32 “Though the State properly subjects [a probationer] to many 

restrictions not applicable to other citizens, his condition is very different from that of 

confinement in a prison.”33 Indeed, “the liberty of a parolee [and a 

probationer] . . . includes many of the core values of unqualified liberty . . . .”34 In sum, 

probation is a noncustodial supervisory period far less onerous to the probationer than the 

incarceration that generally results from the revocation of probation or parole. For this 

reason, the extension of probation does not result in the type of “grievous loss” caused by 

the revocation of parole or probation. Consequently, while the extension of probation 

 

31 Id. at 782. 

32 Morrissey, 408 US at 482. 

33 Id. 

34 Id. 
17 

restricts one’s liberty to a certain extent, it does not constitute a “grievous loss” entitling a 

defendant to additional due-process protections. 

Federal courts that have addressed this issue have likewise declined to apply 

Morrissey and Gagnon to the extension of probation.35 I find the reasoning set forth by the 

United States Court of Appeals for the Third Circuit in Skipworth v United States to be 

particularly persuasive: 

After careful consideration of the principles set forth in Morrissey and 

Gagnon and their applicability to this case, we do not believe that due process 

required notice and a hearing prior to the extension of the petitioner’s 

probation. While we acknowledge that probation entails significant 

restrictions on an individual, an extension of probation is clearly not as 

“grievous” a “loss” as revocation, and here it entailed no greater restrictions 

than those which existed previously. In fact, the primary “loss” suffered by 

an individual whose probation has been extended lies not in the continuing 

restrictions themselves, but in the possibility of future revocation. While 

 

35 See Skipworth v United States, 508 F2d 598, 601-602 (CA 3, 1975); United States v 

Carey, 565 F2d 545, 547 (CA 8, 1977); United States v Cornwell, 625 F2d 686, 688 (CA 

5, 1980); Forgues v United States, 636 F2d 1125, 1127 (CA 6, 1980); United States v 

Silver, 83 F3d 289, 291-292 (CA 9, 1996). 

Our Court of Appeals has also held that a defendant need not be given an 

opportunity to be heard before the trial court extends his or her probation period, People v 

Kendall, 142 Mich App 576, 579; 370 NW2d 631 (1985), or adds a new condition of 

probation, People v Graber, 128 Mich App 185, 190-191; 339 NW2d 866 (1983). This 

Court concluded in Marks, 340 Mich at 499-502, that due process does not require notice

or a hearing prior to the alteration of a probation order after its expiration, but did so in part 

by relying on People v Good, 287 Mich 110; 282 NW 920 (1938), and Burns v United 

States, 287 US 216; 53 S Ct 154; 77 L Ed 266 (1932), for the proposition that probation is 

a “period of grace” and is a privilege rather than a right. As noted above, the Supreme 

Court in Morrissey “rejected the concept that constitutional rights turn upon whether a 

governmental benefit is characterized as a ‘right’ or as a ‘privilege.’ ” Morrissey, 408 US 

at 481 (quotation marks and citation omitted). For this reason, I apply the “grievous loss” 

test referred to in Morrissey rather than focusing on probation’s status as a “privilege.” See 

id. at 481-482. Consequently, while I reach the same result that this Court reached in 

Marks, I do so for different reasons. 
18 

such a loss is indeed serious, it is merely potential at the time of extension, 

and the due process clause clearly provides the protection of a hearing in the 

event that revocation proceedings should subsequently occur. We add that 

the petitioner in fact received a revocation hearing at which he was 

represented by counsel. 

We also note that the kind of factual inquiry in an extension 

proceeding is quite different from that in a revocation proceeding. In 

revocation proceedings, the trial judge must reasonably satisfy himself that 

the probationer has broken some law while on probation or has otherwise 

violated a condition of his probation. While the judge has considerable 

discretion as to whether to order revocation, he must at a minimum make an 

initial factual finding of a probation violation. A revocation hearing, 

therefore, provides the probationer with the crucial opportunity to contest an 

allegation of violation. 

In granting an extension, however, the trial judge is given greater 

latitude, and he need not find that any probation violation has occurred. For 

example, in United States v Squillante, 144 F Supp 494, 497 (SDNY 1956), 

the court refused to terminate the probation which it had previously extended, 

despite finding that the probationer had complied with the express condition 

of his probation, because it believed that “the best interest of society warrants 

the continuation of supervision over the probationer.”[36]

Furthermore, the applicable statutes already provide a probationer with sufficient 

notice that extension of his or her probation period is a possibility. MCL 771.2(5) notifies 

defendants that “[t]he court may amend the [probation] order in form or substance at any 

time.” In addition, MCL 771.5(1) notifies defendants that “[w]hen the probation period 

terminates . . . the court may . . . extend the probation period as the circumstances require, 

so long as the maximum probation period is not exceeded.” And MCL 771.2(1) notifies 

defendants that the maximum probation period for felonies is five years. These statutes 

inform defendants convicted of felonies that their period of probation may be extended up 

to five years. Moreover, defendants have an opportunity to be heard at their trials or plea 

 

36 Skipworth v United States, 508 F2d at 601-602. 
19 

hearings and at sentencing before the trial court originally imposes probation. For the 

reasons set forth above, defendants are not entitled to an additional opportunity to be heard 

after probation is ordered when the trial court is merely extending probation. 

IV. CONCLUSION 

I conclude that the trial court maintained jurisdiction under the applicable statutory 

scheme to extend defendant’s probationary period after its expiration. I further conclude 

that this extension did not violate defendant’s due-process rights. I would therefore affirm 

the lower courts. I respectfully dissent. 

 Brian K. Zahra 

 Stephen J. Markman 

 David F. Viviano