PEOPLE of the State of Michigan, Plaintiff-Appellee
v.
Theodore Harold NOVAK, Defendant-Appellant.
Supreme Court of Michigan.
On order of the Court, the application for leave to appeal the 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 consideration as on leave granted of (1) whether defendant's use of a toy gun to commit the armed robbery is accounted for by the sentencing guidelines, M.C.L. § 777.31, (2) in any event, whether the facts of this case constitute substantial and compelling reasons to depart from the sentencing guidelines range, and (3) if so, whether the extent of the trial court's departure was justified by those reasons. See M.C.L. § 769.34(3); People v. Babcock, 469 Mich. 247, 666 N.W.2d 231 (2003).
We do not retain jurisdiction.
*702 WEAVER, J., dissents and states as follows:
I dissent from the order remanding this case to the Court of Appeals for consideration as on leave granted. Applying the analysis of my partial dissent and partial concurrence in People v. Babcock, 469 Mich. 247, 280-284, 666 N.W.2d 231 (2003), I would deny leave. The trial court satisfied the requirement for "a substantial and compelling reason" for its departure from the sentencing guidelines, and its decision did not venture beyond the range of principled outcomes under the circumstances.