Order Michigan Supreme Court
Lansing, Michigan
July 27, 2007 Clifford W. Taylor,
Chief Justice
133104 & (21) Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
PEOPLE OF THE STATE OF MICHIGAN, Robert P. Young, Jr.
Plaintiff-Appellee, Stephen J. Markman,
Justices
v SC: 133104
COA: 273534
Oakland CC: 2006-206787-FH
RICHARD JOSEPH MARTH,
Defendant-Appellant.
_________________________________________/
On order of the Court, the motion to remand to the trial court is DENIED. The
application for leave to appeal the December 27, 2006 order of the Court of Appeals is
considered and, pursuant to MCR 7.302(G)(1), in lieu of granting leave to appeal, we
REMAND this case to the Court of Appeals for reconsideration of its order. We note that
the defendant filed a timely post-conviction motion and did not purport to file a motion
for relief from judgment, and that the trial court did not address the defendant’s motion
under MCR 6.501 et seq. On remand, the Court of Appeals shall reconsider whether its
order properly denied the defendant’s application for leave to appeal for failure “to meet
the burden of establishing entitlement to relief under MCR 6.508(D).” Within 28 days of
the date of this order, the Court of Appeals shall either reconsider the defendant’s
application for leave to appeal under the standard applicable to direct appeals and decide
whether it shall be granted, or submit to the Clerk of this Court, in writing, an explanation
of why its order denied leave to appeal under MCR 6.508(D).
We retain jurisdiction.
KELLY, J., concurs and states as follows:
The Court of Appeals erred in denying, under MCR 6.508(D), defendant’s
application for leave to appeal. The defendant filed a timely postconviction motion in the
trial court and did not purport to file a motion for relief from judgment. His first and only
application for leave to appeal was timely filed in the Court of Appeals pursuant to MCR
7.205(F)(4). Therefore, I would vacate the order of the Court of Appeals and remand the
case to the Court of Appeals for reconsideration of the defendant’s application for leave
2
to appeal under the standard applicable to direct appeals. Because the Court of Appeals
clearly erred, it is unnecessary for the Court of Appeals to reconsider whether it properly
denied the defendant’s application for leave to appeal for failure “to meet the burden of
establishing entitlement to relief under MCR 6.508(D).”
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
July 27, 2007 _________________________________________
d0724 Clerk