Opinion
SC: 157412 COA: 335273
11-05-2021
PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Kenneth Lee MURINE, Defendant-Appellee.
Order
By order of May 1, 2020, the application for leave to appeal the January 23, 2018 judgment of the Court of Appeals was held in abeyance pending the decision in People v. Washington (Docket No. 160707). On order of the Court, the case having been decided on July 29, 2021, ––– Mich. ––––, ––– N.W.2d ––––, 2021 WL 3201310 (2021), the application is again considered, and it is DENIED, because we are not persuaded that the question presented should be reviewed by this Court.
Viviano, J. (dissenting).
I dissent from this Court's denial order. The Court of Appeals below determined that the trial court lacked subject-matter jurisdiction when it resentenced defendant while defendant's application for leave to appeal was pending before this Court. Without determining that any substantive error occurred below, the Court of Appeals remanded for what amounts to defendant's fourth sentencing. I disagree that the trial court lacked subject-matter jurisdiction, for the reasons stated in my dissent in People v. Washington , ––– Mich. ––––, ––– N.W.2d ––––, 2021 WL 3201310 (2021) (Docket No. 160707). The trial court's action may have violated our court rules, MCR 7.215(F)(1)(a) and MCR 7.305(C)(7)(a), but that error did not deprive it of subject-matter jurisdiction. This species of error is therefore subject to our rule on harmless error, MCR 2.613(A), and our normal preservation requirements under which parties must raise the issues below in order to be able to appeal it. See Booth Newspapers, Inc. v. Univ. of Mich. Bd. of Regents , 444 Mich. 211, 234, 507 N.W.2d 422 (1993). The Court of Appeals did not consider whether the error was harmless. And it appears that defendant did not raise this issue at the trial court level. I would therefore remand to the Court of Appeals to determine whether reversal is warranted in these circumstances.