Amendments Allow Defendants to Seek Post-Judgment Relief in Trial Courts Within 42 Days of Appointment of Appellate Counsel, Even if Later Than 6 Months After Sentencing

Administrative Order No. 2016-07, entered April 19, 2018, effective May 1, 2018
The Michigan Supreme Court has adopted amendments (submitted by SADO) to several court rules with an aim to clarify practices for criminal defendants represented by assigned appellate counsel. The Court’s Order amends MCR 6.310, 6.429, 6.431, 7.205, 7.211, and 7.212. The amendments clarify that assigned or substitute appellate counsel may file a delayed application for leave to appeal within 42 days of assignment (or the filing of the transcript), even if later than six months after sentencing. The amendments also allow an additional 42 days to file certain post-conviction motions for relief in the trial court (plea withdrawal, sentencing correction, or new trial). The current MCR 7.205(G)(4)(c) appeared to allow filing of a delayed application within 42 days of assignment but did not provide a mechanism for seeking relief in the trial court during that period (and the relevant court rules did not provide for relief in the trial court later than six months after sentencing). The amendments provide greater opportunity for relief in the trial court or for issue preservation through trial court motions. The amendments also clarify procedure on motions to remand and seeking permission to file a brief longer than 50 pages.

MCR 6.310—Withdrawal or Vacation of Plea is amended to allow a defendant to file a motion to withdraw plea more than six months after sentencing if the defendant requested the appointment of appellate counsel within six months after sentencing, counsel requested the appropriate transcripts within 28 days of appointment, and the motion is filed within 42 days after appointment of appellate counsel or the filing of the transcripts.

MCR 6.429—Correction and Appeal of Sentence is amended to allow a defendant to file a motion to correct an invalid sentence more than six months after sentencing if the defendant requested the appointment of appellate counsel within six months after sentencing, counsel requested the appropriate transcripts within 28 days of appointment, and the motion is filed within 42 days after appointment of appellate counsel or the filing of the transcripts.

MCR 6.431—New Trial is amended to allow a defendant to file a motion for a new trial more than six months after sentencing if the defendant requested the appointment of appellate counsel within six months after sentencing, counsel requested the appropriate transcripts within 28 days of appointment, and the motion is filed within 42 days after appointment of appellate counsel or the filing of the transcripts.

MCR 7.205—Application for Leave to Appeal is amended to expressly include “substitute counsel” in the 42-day rule of MCR 7.205(G)(4)(c).

MCR 7.211—Motions in Court of Appeals is amended specifically regarding Motions to Remand, MCR 7.211(C)(1), to clarify the procedure and filing timeline after a trial court grants or denies relief on remand.

MCR 7.212—Briefs is amended specifically regarding the procedure for seeking permission to file a brief longer than 50 pages.  

Read the Administrative Order here.