Opinion
No. 113818 (20).
June 20, 2000.
COA: 214333, Michigan, Newaygo CC: 97-006414.
The defendant filed a delayed application for leave to appeal from the December 7, 1998 decision of the Court of Appeals, and this Court ordered the prosecutor to show cause why the defendant's sentence should not be vacated and this case remanded for resentencing on the ground that the prosecution failed to give notice that it was seeking an enhanced sentence on the ground that the defendant was a second felony offender. The Court of Appeals' decision, the defendant's brief, the trial court record and the prosecutor's response to this Court's November 30, 1999 order to show cause have been considered.
On order of the Court, the application for leave to appeal is again considered and, pursuant to MCR 7.302(F)(1), in lieu of granting leave to appeal, we REMAND this case to the trial court. In its response, the prosecution has conceded error. On REMAND, the defendant's sentence, as a second felony offender, shall be VACATED and the defendant resentenced because the prosecution's notice of sentence enhancement was not timely filed, that is, within 21 days after the defendant was arraigned. In all other respects, the delayed application for leave to appeal is DENIED.
We do not retain jurisdiction.