Opinion
Docket No. 146699. COA No. 310127.
2013-09-18
PEOPLE of the State of Michigan, Plaintiff–Appellee, v. Jim Clarence LUTZ, Jr., Defendant–Appellant.
Order
On order of the Court, the application for leave to appeal the December 18, 2012 order of the Court of Appeals is considered and, pursuant to MCR 7.302(H)(1), in lieu of granting leave to appeal, we VACATE the sentence of the Hillsdale Circuit Court, and we REMAND this case to the trial court for resentencing. The trial court articulated substantial and compelling reasons to support a departure from the presumed applicable sentencing guidelines range; however, zero points should have been scored for Offense Variables 1 and 2 because the methamphetamine in this case was not used or possessed as a weapon. SeeMCL 777.31(1), MCL 777.32(1), and People v. Ball, 297 Mich.App. 121, 823 N.W.2d 150 (2012). The resulting change in the defendant's total OV score produces a lower guidelines range, and he is therefore entitled to resentencing. See People v. Francisco, 474 Mich. 82, 711 N.W.2d 44 (2006). On remand, should the trial court decide to again depart from the corrected sentencing guidelines range, it shall articulate a rationale justifying the extent of the particular departure. See People v. Smith, 482 Mich. 292, 754 N.W.2d 284 (2008).