PROPOSED AMENDMENTS OF RULES 6.425, 486 Mich. 1207 (2010)

PROPOSED AMENDMENTS OF RULES 6.425, 6.502, 7.204, AND 7.205 OF THE MICHIGAN COUHT RULES.

Supreme Court of Michigan.
April 27, 2010.

Special Orders.

Order Entered August 27, 2010:

On order of the Court, this is to advise that the Court is considering amendments of Rules 6.425, 6.502, 7.204, and 7.205 of the Michigan Court Rules. Before determining whether the proposals should be adopted, changed before adoption, or rejected, this notice is given to afford interested persons the opportunity to comment on the form or the merits of the proposals or to suggest alternatives. The Court welcomes the views of all. This matter also will be considered at a public hearing. The notices and agendas for public hearings are posted at www.courts.michigan.gov/supremecourt.

Publication of this proposal does not mean that the Court will issue an order on the subject, nor does it imply probable adoption of the proposal in its present form.

[Additions are indicated by underlining and deletions are indicated by strikeover.]

Page 1208

RULE 6.425. SENTENCING; APPOINTMENT OF APPELLATE COUNSEL.

(A)-(F) [Unchanged.]

(G) Appointment of Lawyer; Trial Court Responsibilities in Connection with Appeal.

(1) Appointment of Lawyer.

(a) Unless there is a postjudgment motion pending, the court must rule on a defendant’s request for a lawyer within 14 days after receiving it. If there is a postjudgment motion pending, the court must rule on the request after the court’s disposition of the pending motion and within 14 days after that disposition.

(b) In a case involving a conviction following a trial, if the defendant is indigent, the court must enter an order appointing a lawyer if the request is filed within 42 days after sentencing or within the time for filing an appeal of rightas provided in MCR 7.204(A) and (B), The courtshould liberally grant an untimely request as long as thedefendant may file an application for leave to appeal.

(c) In a case involving a conviction following a plea of guilty or nolo contendere, if the defendant is indigent, the court must enter an order appointing a lawyer if the request is filed within 42 days after sentencing.

(d) Scope of Appellate Lawyer’s Responsibilities. The responsibilities of the appellate lawyer appointed to represent the defendant include representing the defendant

(i) in available postconviction proceedings in the trial court the lawyer deems appropriate,

(ii) in postconviction proceedings in the Court of Appeals,

(iii) in available proceedings in the trial court the lawyer deems appropriate under MCR 7.208(B) or 7.211(C)(1), and

(iv) as appellee in relation to any postconviction appeal taken by the prosecutor.

(2) [Unchanged.]

(3) Order as Claim of Appeal; Trial Cases. In a case involving a conviction following a trial, if the defendant’s request for a lawyer, timely or not, was made within the time for filing a claim of appeal as provided in MCR 7.204(A) and(B). the order described in subrules (G)(1) and (2) must be entered on a form approved by the State Court Administrative Office, entitled “Claim of Appeal and Appointment of Counsel,” and the court must immediately send to the Court of Appeals a copy of the order and a copy of the judgment being appealed. The court also must file in the Court of Appeals proof of having made service of the order as required in subrule (G)(2). Entry of the order by the trial court pursuant to this subrule constitutes a timely filed claim of appeal for the purposes of MCR 7.204.

RULE 6.502. MOTION FOR RELIEF FROM JUDGMENT.

(A)-(G) [Unchanged.]

(H) Time for Filing. Unless otherwise permittedby law, a 1-year period of limitation shall apply to a motionunder this section. The limitation period shall run from thelatest of:
(1) the date on which the judgment of convictionbecomes final:

Page 1209

(2) the date on which the impediment to making amotion created by governmental action in violation of theConstitution or laws of the United States is removed, if themovant was prevented from making a motion by such governmentalaction;
(3) the date on which the right asserted wasinitially recognized by the Michigan Supreme Court, theMichigan Legislature, or the United States Supreme Court, ifthat right has been newly recognized by one of those entitiesand made retroactively applicable to cases on collateral review:or
(14) the date on which the facts supporting theclaim or claims presented could have been discovered throughthe exercise of due diligence.

RULE 7.204. FILING APPEAL OF RIGHT; APPEARANCE.

(A) [Unchanged.]

ALTERNATIVE A (Extension by Court of Appeals) (B) Extension of Time for Filing Claim ofAppeal. Upon a showing of excusable neglect, the Court ofAppeals may extend the time for filing the claim of appeal byany party for a period not to exceed thirty-five days from theexpiration of the time otherwise prescribed by this rule. Suchan extension may be granted before or after the time otherwiseprescribed by this rule has expired: but if a request for anextension is made after such time has expired, it shall be madeby motion. An answer may be filed within 7 days of service. Thetime limit for late appeals from orders terminating parentalrights is 63 days, as provided by MCR 3.993(C)(2).

ALTERNATIVE B (Extension by Trial Court) (B) Extension of Time for Filing Claim ofAppeal. Upon a showing of excusable neglect, the trial courtmay extend the time for filing the claim of appeal by any partyfor a period not to exceed thirty-five days from the expirationof the time otherwise prescribed by this rule. Such anextension may be granted before or after the time otherwiseprescribed by this rule has expired; but if a request for anextension is made after such time has expired, it shall be madeby motion. An answer may be filed within 7 days of service, Thetime lmit for late appeals from orders terminating parentalrights is 63 days, as provided by MCR 3.993(C)(2).

(B)-(H) [Unchanged but relettered.]

RULE 7.205. APPLICATION FOR LEAVE TO APPEAL.

(A) Time Requirements: An application for leave to appeal must be filed within

(1) 21 days after entry of the judgment or order to be appealed from or within other time as allowed by law or rule; or

(2) 21 days after entry of an order deciding a motion for new trial, a motion for rehearing or reconsideration, or a motion for other relief from the order or judgment appealed, if the motion was filed within the initial

Page 1210

21-day appeal period or within further time the trial court has allowed for good cause during that 21-day period.

(3) 21 days after entry of an order deciding amotion to withdraw a plea of guilty or nolo contendere filedunder MCR 6.310(C) or a motion for resentencing filed under MCR6.439(B)(3),

For purposes of subrules (A)(1) and (A)(2),”entry” means the date a judgment or order is signed, or the date that data entry of the judgment or order is accomplished in the issuing tribunal’s register of actions.

ALTERNATIVE A (Extension by Court of Appeals) (B) Extension of Time for Filing Application.Upon a showing of excusable neglect, the Court of Appeals mayextend the time for filing the application for leave to appealby any party for a period not to exceed twenty-one days fromthe expiration of the time otherwise prescribed by this rule.Such an extension may be granted before or after the timeotherwise prescribed by this rule has expired: but if a requestfor an extension is made after such time has expired, it shallbe made by motion. An answer may be filed within 7 days ofservice. The time limit for late appeals from ordersterminating parental rights is 63 days. as provided by MCR3.993(C)(2).

ALTERNATIVE B (Extension by Trial Court) (B) Extension of Time for Filing Application.Upon a showing of excusable neglect, the trial court may extendthe time for filing the application for leave to appeal by anyparty for a period not to exceed thirty-five days from theexpiration of the time otherwise prescribed by this rule. Suchan extension may be granted before or after the time otherwiseprescribed by this rule has expired: but if a request for anextension is made after such time has expired, it shall be madeby motion. An answer may be filed within 7 days of service. Thetime limit for late appeals from orders terminating parentalrights is 63 days. as provided by MCR 3.993(C)(2),

(B)-(E) [Unchanged but relettered.]

(F) Late Appeal
(1) When an appeal of right was not timely filedor was dismissed for lack of jurisdiction, or when anapplication for leave wag not timely filed, the appellant mayfile an application as prescribed in subrule (B), file 5 copiesof a statement of facts explaining the delay, and serve 1 copyon all other parties. The answer may challenge the claimedreasons for delay. The court may consider the length of and thereasons for delay in deciding whether to grant the application.In all other respects, submission, decision, and furtherproceedings are as provided in subrule (D).
(2) In a criminal case, the defendant may notfile an application for leave to appeal from a judgment ofconviction and sentence if the defendant hag previously takenan appeal from that judgment by right or leave granted or hassought leave to appeal that was denied.

Page 1211

(3) Except as provided in subrules (F)(4) and(F)(5), leave to appeal may not be granted if an applicationfor leave to appeal is filed more than 12 months after thelater of:
(a) entry of a final judgment or other orderthat could have been the subject of an appeal of right underMCR 7.203(A), but if a motion described in MCR 7.204(A)(1)(b)was filed within the time prescribed in that rule, then the 12months are counted from the time of entry of the order denyingthat motion; or
(b) entry of the order or judgment to beappealed from, but if a motion for new trial, a motion forrehearing or reconsideration, or a motion for other relief fromthe order or judgment appealed was filed within the initial21-day appeal period or within further time the trial court hasallowed for good cause during that 21-day period, then the 12months are counted from the entry of the order deciding themotion.
(4) The limitation provided in subrule (F)(3)does not apply to an application for leave to appeal by acriminal defendant if the defendant files an application forleave to appeal within 21 days after the trial court decides amotion for a new trial, for directed verdict of acquittal, towithdraw a plea, or to correct an invalid sentence, if themotion was filed within the time provided in MCR 6.310(C), MCR6.410(D), MCR 6.429(D), and MCR 6.431(A), or if
(a) the defendant has filed a delayed requestfor the appointment of counsel pursuant to MCR 6.425(G)(1)within the 12-month period,

(b) the defendant or defendant’s lawyer, if oneis appointed, has ordered the appropriate transcripts within 28days of service of the order granting or denying the delayedrequest for counsel, unless the transcript has already beenfiled or has been ordered by the court under MCR 6.425(G)(2),and
(c) the application for leave to appeal is filedin accordance with the provisions of this rule within 42 daysafter the filing of the transcript. If the transcript was filedbefore the order appointing or denying the appointment ofcounsel, the 42-day period runs from the date of thatorder.
A motion for rehearing or reconsideration of a motionmentioned in subrule (F)(4) does not extend the time for filingan application for leave to appeal, unless the motion forrehearing or reconsideration was itself filed within 21 daysafter the trial court decides the motion mentioned in subrule(F)(4), and the application for leave to appeal is filed within21 days after the court decides the motion for rehearing orreconsideration.
A defendant who seeks to rely on one of the exceptions insubrule (F)(4) must file with the application for leave toappeal an affidavit stating the relevant docket entries, a copyof the register of actions of the lower court, tribunal, oragency, or other documentation showing that the application isfiled within the time allowed.
(5) Notwithstanding the 12-month limitationperiod otherwise provided in subrule (F)(3), leave to appealmay be granted if a party’s claim of appeal is dismissed forlack of jurisdiction within 21 days before the expiration ofthe 12-month limitation period, or at any time after the12-month limitation period has expired, and the party files alate application for leave to appeal from the same lower courtjudgment or

Page 1212

order within 21 days of denial of a timely filedmotion for reconsideration. A party filing a late applicationin reliance on this provision muat note the dismissal of theprior claim of appeal in the statement of facts explaining thedelay.
(6) The time limit for late appeals from ordersterminating parental rights is 63 days, as provided by MCR3.993(C)(2).

(G) [Unchanged.]

Staff Comment: The amendments proposed in this order would impose time limits for the filing of motions for relief from judgment in criminal cases and would shorten time limits for late appeals in both civil and criminal actions. In proposed amendments of MCR 7.204 and MCR 7.205, alternative provisions are offered, under which, upon a showing of excusable neglect, the Court of Appeals or a trial court may grant an extension of time for filing a late appeal.

The staff comment is not an authoritative construction by the Court. A copy of this order will be given to the Secretary of the State Bar and to the State Court Administrator so that they can make the notifications specified in MCR 1.201. Comments on these proposals may be sent to the Supreme Court Clerk in writing or electronically by August 1, 2010, at PO. Box 30052, Lansing, MI 48909, or MSC_clerk@courts.mi.gov. When filing a comment, please refer to ADM File No. 2009-19. Your comments and the comments of others will be posted at www.courts.mi.gov/supremecourt/resources/administrative/index.htm.