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People v. Emery

Court of Appeals of Michigan
Nov 1, 2023
No. 366111 (Mich. Ct. App. Nov. 1, 2023)

Opinion

366111

11-01-2023

People of Michigan v. Larry Lanelle Emery


LC No. 2018-265727-FC

Sima G. Patel Presiding Judge Kathleen Jansen Colleen A. O'Brien Judges

ORDER

The motion to waive fees is GRANTED for this case only.

Pursuant to MCR 7.205(E)(2), in lieu of granting the application for leave to appeal, the Court VACATES the April 17, 2023 order of the Oakland County Circuit Court and REMANDS for reconsideration of defendant's motion for the appointment of appellate counsel. The trial court erred by construing defendant's motion as a request under MCR 6.505(A) for legal assistance to pursue a motion for relief from judgment. Instead, relying on Roe v Flores-Ortega, 528 U.S. 470; 120 S.Ct. 1029; 145 L.Ed.2d 985 (2000) and Halbert v Michigan, 545 U.S. 605; 125 S.Ct. 2582; 162 L.Ed.2d 552 (2005), defendant argued that failings by his previous appellate attorneys deprived him of his right to apply for leave to appeal his plea-based convictions to this Court and that, in view of counsels' failings, he should be afforded an opportunity to apply for first-tier review with the assistance of counsel. Stated differently, defendant sought restoration of his appellate rights, and this motion was reviewable under MCR 6.428. See People v Tardy,_____ Mich. App_____;_____ N.W.2d (2023)_____ (Docket No. 360026); People v Byars,_____ Mich. App_____; _____N.W.2d_____ (2023) (Docket No. 357013). On remand, the trial court shall review defendant's motion under MCR 6.428 and make any factual findings necessary to determine whether defendant is entitled to restoration of his appellate rights. See People v Guile, 495 Mich. 888 (2013).

This order has immediate effect. MCR 7.215(F)(2).

The Court does not retain jurisdiction.


Summaries of

People v. Emery

Court of Appeals of Michigan
Nov 1, 2023
No. 366111 (Mich. Ct. App. Nov. 1, 2023)
Case details for

People v. Emery

Case Details

Full title:People of Michigan v. Larry Lanelle Emery

Court:Court of Appeals of Michigan

Date published: Nov 1, 2023

Citations

No. 366111 (Mich. Ct. App. Nov. 1, 2023)