Opinion
No. 143177.
September 30, 2011.
Order
SC: 143177, COA: 297155, Macomb CC: 2009-001960-FH
On order of the Court, the application for leave to appeal the April 21, 2011 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.
I concur with the order denying leave to appeal. The Court of Appeals correctly vacated defendant's probation sentence and remanded for resentencing. However, in light of the Court of Appeals' disposition, the majority's comments regarding the trial court's bases for imposing a downward departure sentence are dicta. Moreover, they are inaccurate. As Judge MURRAY'S partial dissenting opinion observed, some of the factors that the majority finds inappropriate are appropriate considerations for the trial court.
People v Daniel, 462 Mich 1, 7 (2000); People v Fields, 448 Mich 58, 77 (1995).
I agree with Judge MURRAY that the majority attempted to "place handcuffs on the trial court's decision on remand. . . ." The more prudent action would have been to refrain from addressing the issue.
People v Olear, unpublished opinion per curiam of the Court of Appeals, issued April 21, 2011 (Docket No. 297155) (MURRAY, J., concurring in part, dissenting in part).