PEOPLE of the State of Michigan, Plaintiff-Appellee,
v.
Scott Michael BARBER, Defendant-Appellant.
Docket No. 118996, COA No. 208973.
Supreme Court of Michigan.
December 4, 2001.On order of the Court, the delayed application for leave to appeal from the November 28, 2000, decision of the Court of Appeals is considered, and, we DIRECT the prosecutor to file a supplemental brief addressing the questions: (1) whether the filing of the notice to seek enhanced sentence was untimely in this case under M.C.L. § 769.13(1); (2) whether this Court's setting a time for filing a notice under MCR 6.112 different from that set by M.C.L. § 769.13(1) was within this Court's power, see McDougall v. Schanz, 461 Mich. 15, 597 N.W.2d 148 (1999); (3) whether the failure to raise this issue at the trial court can be regarded as harmless error under MCR 6.112 with the result that the clear error standard cannot be used; (4) whether any failure to comply with M.C.L. § 769.13 was clear error; (5) whether trial counsel was ineffective for failing to move to dismiss the notice under M.C.L. § 769.13; and (6) whether the trial court erred in ordering restitution without holding the hearing on the amount of restitution requested by counsel.
The defendant is directed to file with the Mecosta Circuit Court an affidavit concerning his present financial status (see guidelines at 387 Mich. xxxi). The Mecosta Circuit Court must provide the prosecutor with a copy of the defendant's affidavit. The prosecutor may challenge the defendant's assertion of indigency by filing an appropriate motion with the Mecosta Circuit Court within 14 days after the prosecutor receives the copy of the affidavit. If such challenge is brought, the Mecosta Circuit Court must conduct a hearing on the matter within 21 days after the prosecutor's motion is filed. The prosecutor, the defendant, and an attorney appointed by the Mecosta Circuit Court to represent the defendant must appear at the hearing.
If the Mecosta Circuit Court determines that the defendant is indigent, the Court must appoint the State Appellate Defender Office to represent defendant. That order must be entered within 14 days after the hearing or, if the prosecutor has not challenged the defendant's assertion of indigency, within 28 days after the defendant files his affidavit. The Mecosta Circuit Court must promptly forward to the Clerk of this Court a copy of the appointment order.
If the Mecosta Circuit Court determines the defendant is not indigent, the Mecosta *694 Circuit Court must promptly notify the Clerk of this Court.
The defendant's response must be filed within 28 days after the filing of the prosecutor's supplemental brief, or within 21 days after counsel's appointment, whichever is later.
We retain jurisdiction.