Summary
holding that "the scope of the second appeal is limited by the scope of the remand"
Summary of this case from People v. GriffithOpinion
Docket Nos. 56549, 56730.
Decided July 23, 1975.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Patricia J. Boyle, Principal Attorney, Research, Training Appeals, and Luvenia D. Dockett, Assistant Prosecuting Attorney, in People v Jones, and Robert M. Morgan, Assistant Prosecuting Attorney, in People v Pequies, for the people.
State Appellate Defender, by Steven L. Schwartz, Assistant Defender, in People v Jones, and by Elizabeth Schwartz, Assistant Defender, in People v Pequies.
MEMORANDUM OPINION. Eugene Jones originally was convicted and sentenced in 1971. He appealed to the Court of Appeals as of right and a panel affirmed Jones' conviction but remanded for resentencing.
After resentencing, Jones sought an appeal of right which the Court of Appeals dismissed because the Court "determined that an order of resentencing alone, which is not the result of a new criminal prosecution, is not appealable as of right to this Court".
Harvey Pequies originally was convicted and sentenced in 1971. He appealed to the Court of Appeals as of right, and a panel affirmed on certain issues but remanded for an evidentiary hearing concerning certain identification evidence.
After the trial judge made a decision on the basis of the evidence adduced at the evidentiary hearing, Pequies sought an appeal of right. The Court of Appeals dismissed this appeal of right without prejudice to the filing of a delayed application for leave to appeal.
Both Jones and Pequies brought an application for leave to appeal to this Court challenging dismissal of their appeals of right by the Court of Appeals. We grant both applications and, sua sponte, pursuant to GCR 1963, 865.1(7), reverse the Court of Appeals in both cases, and order Jones' and Pequies' claims of appeal reinstated as appeals of right.
In both situations, we view the proceedings on remand as an integral part of defendants' constitutionally guaranteed appeal as of right. The rationale of People v Pickett, 391 Mich. 305; 215 N.W.2d 695 (1974), clearly applies to the situations and allows the second appeal to the Court of Appeals to be as of right.
Just as in Pickett, we hold that the scope of the second appeal is limited by the scope of the remand. Thus, Jones' second appeal shall be concerned only with matters which arose at resentencing and Pequies' second appeal shall be concerned only with issues arising from the evidentiary hearing.
T.G. KAVANAGH, C.J., and WILLIAMS, LEVIN, M.S. COLEMAN, and LINDEMER, JJ., concurred.
J.W. FITZGERALD, J., concurred as to Pequies, and did not participate in Jones.
SWAINSON, J., took no part in the decision in this case.