At the CDRC, we regularly receive questions from defense attorneys around the state. In this new column, we will reprint our answers to common or interesting questions (with any identifying case details omitted or modified) that might be helpful to a wider audience.

We have received some questions about when a trial court can actually resentence or retry a defendant after the Court of Appeals issues an opinion granting the defendant resentencing or a new trial. 

Here are two examples of what we’ve received about this issue:

First question: The Court of Appeals recently issued an opinion that affirmed my client’s convictions but granted them resentencing. We plan to appeal, and so does the prosecutor, but the trial court is insisting on proceeding with the resentencing now. What is supposed to happen in this situation?

Second question: My client was granted a new trial by the Court of Appeals two weeks ago. This week, the trial court issued a writ to bring my client from the MDOC to the jail to be retried. The court clerk asked me if I will continue to serve as counsel or if new counsel should be appointed. Doesn’t the prosecutor have 56 days to appeal?After the Court of Appeals issues an opinion in an appeal, MCR 7.215(E) requires the clerk of the Court of Appeals to send a copy of the opinion to the trial court. However, MCR 7.215(F) generally prevents the trial court from taking any action pursuant to the directive contained in the opinion for at least 57 days.

The reason for this rule is practical; it would be a waste of time and judicial resources to conduct a retrial or resentencing, only to later have the Supreme Court reverse the Court of Appeals’ decision awarding relief or render that relief moot by granting the defendant greater relief. Despite this, the Supreme Court noted a “persistent and general lack of understanding of how and when an opinion of the Court of Appeals becomes effective for the purposes of execution or enforcement” almost fifty years ago. People v George, 399 Mich 638, 639 (1977).

People v Washington, 508 Mich 107 (2021), demonstrates that this lack of clarity continues to persist, and provides a fairly recent example of the complications that can arise when the trial court prematurely resentences a defendant after the Court of Appeals grants relief. In Washington, the Court of Appeals issued an opinion affirming the defendant’s convictions but remanding for resentencing. Mr. Washington filed a timely application for leave to appeal his convictions to the Supreme Court, but the trial court resentenced him while his application was still pending. Even though the error was seemingly rendered harmless when the Supreme Court subsequently denied Mr. Washington’s application for leave to appeal, the judgment of sentence that issued while the application was pending was “void ab initio.” Id. at 131. This jurisdictional defect entitled him to file a successive motion for relief from judgment challenging his sentence eight years after the resentencing. Id.

Mr. Washington did benefit from the trial court’s error. But in most cases, errors like this are not beneficial to the defense. They create confusion and disappointment for our clients and their families. At some point in their careers, most appellate attorneys who represent criminal defendants will need to explain to both the trial court and their own clients why the trial court must wait to afford the defendant the relief awarded by the Court of Appeals.

When a defendant is found guilty at the conclusion of a trial and submits a timely request for appellate counsel after sentencing, a claim of appeal issues. MCR 6.425(G)(1)(e); MCR 7.204(B). After the claim issues, MCR 7.208(A) generally prevents the trial court from modifying the defendant’s conviction(s) or sentence(s). When the defendant is convicted by plea (or when the defendant requests appellate counsel more than 42 days after sentencing following their conviction at trial), no claim of appeal issues. In those cases, MCR 7.208(A) generally prevents the trial court from granting plea withdrawal (or a new trial) or modifying the defendant’s sentence after the Court of Appeals grants the defendant’s application for leave to appeal.

There are several exceptions to this Rule. Aside from ‘clerical mistakes’, which can be corrected at any time, MCR 6.435(A), the largest exceptions are set forth in MCR 7.208(B), which permits the defendant to move for a new trial or resentencing after the claim is filed, but before they file their appellate brief, and MCR 7.211(C), which permits the defendant to seek and obtain remand to the trial court from the Court of Appeals in order to move for a new trial or resentencing.

However, unless stipulated to by the parties or the Court of Appeals explicitly states that its opinion granting the defendant resentencing or a retrial is to have immediate effect, the trial court generally lacks the authority to resentence or retry the defendant until “after the expiration of the time for filing an application for leave to appeal in the Supreme Court, or, if such an application is filed, after the disposition of the case by the Supreme Court.” MCR 7.215(F)(1). Both parties have 56 days after the issuance of a Court of Appeals opinion (or the Court of Appeals’ denial of a timely motion for reconsideration) to seek leave to appeal to the Supreme Court. MCR 7.305(C)(2)(a). Therefore, defendants usually cannot be retried or resentenced pursuant to relief granted by a Court of Appeals opinion for at least 56 days after the Court of Appeals issues its opinion. When either party files a timely application, the trial court will only have the authority to proceed after the Supreme Court denies leave to appeal or otherwise affirms the Court of Appeals’ decision granting relief. MCR 7.215(F)(1).

There is no corresponding Court Rule that stays enforcement of a Michigan Supreme Court judgment to provide both parties an opportunity to petition the U.S. Supreme Court for certiorari. But unless ordered otherwise by the Michigan Supreme Court, relief awarded in its opinions and orders do not take effect for 21 days after entry, which provides the parties an opportunity to move for reconsideration. If neither party seeks reconsideration within that time, its judgment becomes effective after a certified copy is transmitted to the trial court by the clerk of the Supreme Court, which must occur within seven days after the time for seeking reconsideration has expired. MCR 7.315(C).

Trial courts are often unaware of these rules or simply want the parties to place something on the record to establish that it is not responsible for the delay in complying with the Court of Appeals’ directive. Where a defendant will receive some immediate benefit from being resentenced or retried immediately, their attorney should move to have the Court of Appeals opinion granted immediate effect, pursuant to MCR 6.211(A) and 7.215(F)(2). In other cases, appellate counsel should clearly and proactively explain to the trial court and their clients the procedural rules requiring the delay.

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