Sentencing; Whether defendant was properly resentenced on the assault with intent to murder convictions; Motion for relief from judgment; People v. Swain; People v. Allen; MCR 6.501 & 502; MCR 6.502(G); Whether the motion was a successive motion; MCR 6.502(G)(1); Whether good cause & actual prejudice existed to warrant granting defendant’s motion for relief from judgment; MCR 6.508; People v. Clark; MCR 6.508(D)(3); People v. Reed

The court held that the trial court did not abuse its discretion in treating defendant’s motion for relief from judgment as an initial rather than a successive one. Also, the trial court did not abuse its discretion in holding that good cause and actual prejudice existed to warrant granting his motion for relief from judgment. The prosecution asserted that the trial court never should have considered defendant’s motion for relief from judgment because it constituted a successive motion limited by the restrictions of MCR 6.502(G). The court noted that a large portion of the prosecution’s argument was that the trial court failed to apply MCR 6.502(G) to defendant’s motion. The trial court determined that his motion was not successive and thus, the issue was less about how MCR 6.502(G) applied and more about whether it applied at all. “Although the poorly organized condition of the lower court file complicates review of the issue on appeal,” the court found that it could not be said that the trial court clearly erred when it concluded that defendant’s motion “was not a successive motion, nor should defendant bear the responsibility for the disorder of the lower court file.” The prosecution claimed that defendant filed an initial motion for relief from judgment in 2005 and that the trial court issued an opinion and order denying it on 10/24/05. But a full review of the record clearly showed that the motion for relief from judgment disposed of by the 10/24/05 order was filed by his codefendant Sharp and not defendant. The record then reflected “continued failure by the trial court to rectify its mistake despite consistent communication and pleas from defendant for the error to be corrected.” The prosecution conceded that defendant seemed to be correct “about the motion, and that ‘the body of the order seemed to discuss the issues raised in Sharp’s motion, not defendant’s motion,’” yet still contended that he should have been barred from filing a motion for relief from judgment because he failed to appeal either the 10/24/05 order, or the 12/7/05 order denying his request for reconsideration. The court was “not left with a definite and firm conviction that the trial court was mistaken when it determined that, to the extent that defendant had ever filed a motion for relief from judgment, the motion had never been properly reviewed and decided.” Affirmed.