People v. George , 399 Mich. 638 ( 1977 )

399 Mich. 638 (1977) 250 N.W.2d 491

PEOPLE
v.
GEORGE

Docket No. 58627.

Supreme Court of Michigan.

Decided February 14, 1977.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, L. Brooks Patterson, Prosecuting Attorney, and Thomas S. Richards, Assistant Prosecuting Attorney, for the people.

Faintuck, Shwedel, Roether, Wolfram, McDonald & Zipser for defendant.

PER CURIAM:

Defendant's interlocutory "motion to determine trial court jurisdiction" raises the question of whether Oakland Circuit Court has jurisdiction, at this time, to retry him. We hold that it does not and issue this opinion, in lieu of an order, because there appears to be 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.

The defendant was convicted of second-degree murder in Oakland Circuit Court on May 15, 1974. Appeal by the defendant was timely taken to the Court of Appeals and on June 14, 1976 that Court issued its opinion which concluded with the words, "Reversed and remanded". 69 Mich. App. 403; 245 NW2d 65. On July 2, 1976 the plaintiff filed an application for leave to appeal with this Court. The application to this Court was timely, having been filed within 20 days of the issuance of the Court of Appeals opinion. See GCR 1963, 853.2(1). That application to this Court has been neither denied nor granted and therefore remains pending before this Court.

The clerk of the Court of Appeals was obliged to enter an order pursuant to the June 14, 1976 opinion of that Court, "forthwith upon filing of the opinion," GCR 1963, 821.2. He has done so. That order, dated June 14, 1976, is in the original file of the Court of Appeals which is now in the possession of this Court. The clerk of the Court of Appeals was also obliged to send notice to counsel for each party of entry of that order of the Court of Appeals. GCR 1963, 853.2(1). That judgment order has not been issued because a timely application for leave to appeal from the judgment order of the Court of Appeals was filed with this Court by the plaintiff-appellant and has not yet been resolved by this Court. Nevertheless, a day was set for a new trial in circuit court. With trial ready to commence, the circuit judge noticed that final process had not issued from the Court of Appeals, and he adjourned the trial. Defendant's motion in this Court followed.

Under GCR 1963, 802.1, jurisdiction of this case was vested in the Court of Appeals, and thus removed from the circuit court, when the defendant's claim of appeal was filed in the Court of Appeals on June 26, 1974. Until the pending application for leave to appeal is resolved, jurisdiction is not revested in the circuit court.

If this Court denies the pending application for leave to appeal, the Court of Appeals judgment then becomes the final adjudication of this case and may be enforced in accordance with its terms, under GCR 1963, 853.2(2). To restate, if this Court denies leave to appeal, jurisdiction will then be revested in the circuit court by issuance of the Court of Appeals judgment order under GCR 1963, 812.11. If, on the other hand, this Court grants the pending application for leave to appeal, "all jurisdiction over the cause shall thereafter be vested in the Supreme Court", GCR 1963, 853.2(2). If this Court grants leave to appeal, jurisdiction of this case will be revested in the Court of Appeals or the circuit court on the issuance of and in accordance with the terms of any final order or judgment issued by this Court pursuant to its decision on the appeal granted. See GCR 1963, 866.

Motion granted. The Oakland Circuit Court does not have jurisdiction, at this time, to retry the defendant.

KAVANAGH, C.J., and WILLIAMS, LEVIN, COLEMAN, FITZGERALD, RYAN, and BLAIR MOODY, JR., JJ., concurred.