PRV 5 instructs: “Do not count a prior conviction used to enhance the sentencing offense to a felony.” MCL 777.55(2)(a). Generally, a person is guilty of first-degree retail fraud if the property is worth $1,000 or more, MCL 750.356c(1); however, a first-degree retail fraud conviction can also be obtained if the defendant commits retail fraud in the second degree and “has 1 or more prior convictions” for retail fraud in the second degree (or other specified crimes not relevant to your question), MCL 750.356c(2). Accordingly, if the sentencing offense of first-degree retail fraud in your case is based on the fact that the defendant was previously convicted of second-degree retail fraud, you cannot count the prior second-degree retail fraud conviction used to make the sentencing offense a first-degree retail fraud conviction under PRV 5. However, because MCL 750.356c(2) only requires one prior retail fraud conviction to find a person guilty of first-degree retail fraud, you can arguably count three out of the four prior second-degree retail fraud convictions under PRV 5. Ultimately, no binding legal authority has directly addressed the circumstances your question presents and it remains an unresolved question of law for the court to decide.
Tags: PRV 05