PEOPLE v. BROWN, 459 Mich. 951 (1999)

590 N.W.2d 573

PEOPLE v. KEVIN BROWN,

No. 113173.Supreme Court of Michigan.
March 19, 1999.

In lieu of granting leave to appeal, the July 23, 1998 order of the Wayne Circuit Court is reversed for the reasons stated in the dissent that accompanied the September 10, 1998 order of the Court of Appeals, and the case is remanded to the Wayne Circuit Court for further proceedings. MCR 7.302(F)(1). Jurisdiction is not retained. Court of Appeals No. 213397.

Cavanagh, J., states as follows:

I concur in this Court’s order but feel compelled to point out how it illustrates the absurdity of this Court’s decision i People v. Sexton, 458 Mich. 43 (1998), which held that the rule announced in People v. Bender, 452 Mich. 594 (1996), should not be applied retroactively. This case was held in abeyance pending the decision in Bender. Once Bender was decided, the case was remanded to the Court of Appeals and a new trial was granted. That result would seem most appropriate in a case like this one, which was pending appeal to this Court and was actually held in abeyance for Bender. The defendant in Bender got a new trial because his

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case arrived here first, just before this case. This seems like a pretty random way to afford relief.

KELLY, J.

I join in the statement of Cavanagh, J.

Reconsideration denied June 29, 1999.