(dissenting). I agree that the rationale of the majority in People v McMiller, 389 Mich 425; 208 NW2d 451 (1973), is such that no logical distinction can be drawn between a new trial ordered following successful appeal and one ordered following a successful motion for a new trial made prior to appeal. Thus, the McMiller rule is applicable to and controlling of this case.
I write separately only to record once and for all my disagreement with the "policy” pronouncement of McMiller.
I would reverse the Court of Appeals in this case after first abandoning the McMiller rule.
Coleman and Fitzgerald, JJ., concurred with Ryan, J.