Sentencing; Whether the trial court had jurisdiction when resentencing the defendant; MCR 7.302(C)(5); MCR 7.302(C)(4)(a); MCR 7.215(E)(1); MCR 7.215(F)(1)(a); People v. Swafford; People v. Clement; Judicial disqualification; MCR 2.003(D)(3)(a)(i); Sinicropi v. Mazurek; Welch v. District Court; People v. Danto; MCR 8.111(C)(1); Caperton v. Massey; Timeliness of resentencing; Applicability of MCL 771.1(2); Presentence investigation report; MCR 6.425; People v. Triplett; Scoring of 15 points for prior record variable 6; MCL 777.56; MCL 777.56(1)(b)

As the prosecution conceded, the trial court lacked jurisdiction when resentencing the defendant. Thus, the court vacated his sentence and remanded for resentencing. Defendant argued that his sentence must be vacated because the trial court did not have jurisdiction to resentence him while his timely leave application to the Supreme Court was pending. The prosecution agreed that “defendant’s application for leave to appeal was timely and should have stayed the proceedings on remand.” MCR 7.302(C)(5) provides, in part, that if “a party appeals a decision which remands for further proceedings as provided in subrule (C)(4)(a), the following provisions apply: (a) If the Court of Appeals decision is a judgment under MCR 7.215(E)(1), an application for leave to appeal stays proceedings on remand unless the Court of Appeals or the Supreme Court orders otherwise.” MCR 7.215(F)(1)(a) “provides that ‘the Court of Appeals judgment is effective after the expiration of the time for filing an application for leave to appeal to the Supreme Court, or, if such an application is filed, after the disposition of the case by the Supreme Court.’” In Swafford, the Supreme Court noted that the defendant’s timely application for leave to appeal the court’s judgment “stayed the proceedings on remand and divested the trial court of jurisdiction during the pendency of the appeal” to the Supreme Court. “‘When a court is without jurisdiction of the subject matter, its acts and proceedings are of no force and validity; they are a mere nullity and are void.’”