On March 26, 1971, defendant entered a plea of guilty to unlawful possession of marijuana, MCLA 335.153; MSA 18.1123. He was sentenced to 4-1/2 to 10 years in prison. Defendant’s motion for a new trial was denied and he has appealed his conviction.
On March 9, 1972, the Supreme Court of this state decided People v Sinclair, 387 Mich 91 (1972). On the same date the Supreme Court decided People v Lorentzen, 387 Mich 167 (1972). In Lorentzen the Court said, p 171:
"In People v Sinclair, 387 Mich 91 (1972), decided this same day, the equal protection, due process and right to *87privacy issues raised by defendant are considered. None of these issues are decided by a majority of this Court favorably to defendant.”
This statement confirmed that Sinclair was not controlling precedent because a majority of the Court did not concur in any one opinion. MCLA 600.229; MSA 27A.229. People v Gonzales, 356 Mich 247 (1959); Corporation & Securities Commission v American Motors Corp. 4 Mich App 65 (1966).
Thus, had Sinclair and Lorentzen been the only pronouncements by the Supreme Court, this Court would have been free to determine this appeal on its merits. However, on April 7, 1972, the Supreme Court entered the following order:
"IN THE MATTER OF AN APPLICATION FOR HABEAS CORPUS IN BEHALF OF THE PEOPLE
ORDER
"The Court, having received a communication from the Department of Corrections’ Director, Mr. Gus Harrison, and an application for a writ of habeas corpus by Frank J. Kelley, Attorney General of the State of Michigan, on behalf of the people of this State, asking for appropriate orders directed to the Michigan Department of Corrections, Gus Harrison, Director, to release 128 persons whose names were attached to the petition for the writ, for the reason that the restraint of these 128 persons pursuant to convictions for possession or attempted possession of marijuana is unlawful in light of this Court’s decision in People v Sinclair, 387 Mich 91 (1972), by which a majority of this Court held unconstitutional the possession provisions of MCLA 335.153, MSA 18.1123.
"IT IS ORDERED, that the petition for a writ of habeas corpus on behalf of the named persons be GRANTED, and that a writ of habeas corpus be issued to the Michigan Department of Corrections, Gus Harrison, Director, to produce the persons named in said *88petition before the Circuit Court for the County of Jackson, at 2:00 p.m., on Monday, April 10,1972.”
Subsequent to, the issuance of the aforementioned order the vast majority of the 128 persons have had their convictions set aside and have been released from custody.
In this case, the defendant is on bond and not being in the custody of the Michigan Department of Corrections, he is not subject to the Supreme Court order of April 7, 1972. However, it would be a useless gesture to require the defendant to obtain a writ of habeas corpus on the instant conviction. Therefore, because the Supreme Court order of April 7, 1972, indicates that persons being held for convictions under MCLÁ 335.153; MSA 18.1123 are to be released, the conviction of the defendant for possession of marijuana in violation of MCLA 335.153; MSA 18.1123 is hereby reversed, the bond cancelled and the defendant ordered discharged.
R. B. Burns, J., concurred.