Opinion
364644
08-03-2023
People of Michigan v. Jerry Anderson II
LC No. 16-039145-FC
Elizabeth L. Gleicher Presiding Judge Mark J. Cavanagh Sima G. Patel Judges
ORDER
The motion to waive fees is GRANTED for this appeal only.
The motion for immediate consideration is DENIED.
The motion for direction on how to proceed is DISMISSED as moot because defendant has filed an application conforming to MCR 7.212(C).
The motion for peremptory relief pursuant to MCR 7.211(C)(4) is GRANTED and the circuit court's September 12, 2022 order is VACATED in part. This case is remanded to the circuit court for consideration of defendant's May 11, 2020 motion for relief from judgment as a first motion for relief from judgment under MCR 6.508(D). The circuit court erred by reviewing defendant's May 11, 2020 motion as a successive motion for relief from judgment because the circuit court failed to comply with MCR 6.502(D) in deciding defendant's 2018 motions for an evidentiary hearing and writ of habeas corpus. The court rule required the circuit court to either return those motions to defendant or adjudicate them as a first motion for relief from judgment under MCR subchapter 6.500. See People v Starnes, 505 Mich. 1052; 942 N.W.2d 34 (2020). The circuit court erred by directing that the motions be returned to defendant while also deciding them under subchapter 6.500, albeit referencing the motions as motions for an evidentiary hearing and writ of habeas corpus in the October 3, 2018 order denying the motions. On remand, the court shall decide defendant's May 11, 2020 motion as a first motion for relief from judgment under MCR 6.508(D). In all other respects, leave to appeal is DENIED.
This order is to have immediate effect. MCR 7.215(F)(2). We do not retain jurisdiction.