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160707 - People v Gregory Carl Washington

The People of the State of Michigan,


Joseph Shopp





(Appeal from Ct of Appeals)



(Wayne – Fresard, P.)


Gregory Carl Washington,


John Royal





Following a jury trial in 2004, the defendant was convicted of second-degree murder and other crimes.  The Court of Appeals affirmed the defendant’s convictions, but remanded the case to the trial court for resentencing.  The defendant filed an application for leave to appeal in the Supreme Court, and while the application was pending in the Supreme Court, the trial court resentenced the defendant in violation of MCR 7.215(F)(1)(a) (providing that a Court of Appeals judgment is not effective until the disposition of the application for leave to appeal in the Supreme Court) and MCR 7.305(C)(6)(a) (providing that an application in the Supreme Court stays any proceedings on remand that were ordered by the Court of Appeals).  Ten years later, after a second direct appeal and a motion for relief from judgment, the defendant filed a successive motion for relief from judgment, arguing that the trial court lacked jurisdiction to resentence him.  The trial court granted relief and ordered resentencing.  After the Court of Appeals affirmed in a published opinion, the Supreme Court heard oral argument on the prosecution’s application.  In lieu of granting leave appeal, the Court vacated the Court of Appeals opinion and remanded to that court for reconsideration in light of Luscombe v Shedd’s Food Products, 212 Mich App 537 (1995).  On remand, the Court of Appeals issued a published opinion reversing the trial court’s grant of resentencing, holding that although the trial court erred by resentencing the defendant too soon, this was not a structural error occasioned by a lack of subject-matter jurisdiction.  The Supreme Court has ordered oral argument on the application to address:  (1) whether the trial court’s act of resentencing the defendant while an application for leave to appeal was pending in the Supreme Court constituted a defect in subject-matter jurisdiction; and (2) if so, whether defects in subject-matter jurisdiction can be challenged in a successive motion for relief from judgment.  Compare MCR 6.502(G)(2) (only permitting a second or subsequent motion for relief from judgment if it is based on a retroactive change in the law or on a claim of new evidence) and In re Ives, 314 Mich 690, 696 (1946) (“The question of jurisdiction of the subject-matter may be raised at any time.”).​