Clement, J.
Syllabus
This syllabus constitutes no part of the opinion of the Court but has been Reporter of Decisions: prepared by the Reporter of Decisions for the convenience of the reader.
In 2004, Gregory C. Washington was convicted following a jury trial in the Wayne Circuit Court of second-degree murder, MCL 750.37; two counts of assault with intent to commit murder (AWIM), MCL 750.83; possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b; and being a felon in possession of a firearm (felon-in-possession), MCL 750.224f. The court, Patricia P. Fresard, J., sentenced defendant as a second-offense habitual offender, MCL 769.10, to 40 to 60 years in prison for second-degree murder; the 40-year minimum sentence was a 12-month upward departure from the sentencing guidelines range. The trial court also sentenced defendant to life in prison for AWIM, 2 to 71/2 years in prison for felon-in-possession, and 2 years in prison for felony-firearm. Washington appealed his convictions and sentences in the Court of Appeals. In an unpublished opinion issued June 13, 2006 (Docket No. 260155), the Court affirmed defendant's convictions but remanded the case for resentencing because the trial court had failed to articulate substantial and compelling reasons for its departure from the second-degree murder sentencing guidelines. Before defendant was resentenced, he filed an application for leave to appeal in the Supreme Court. While the Supreme Court was considering defendant's application, the trial court resentenced defendant, and he applied in the Court of Appeals for leave to appeal his new sentence. The Supreme Court ultimately denied defendant's application for leave to appeal his original convictions. 477 Mich. 973 (2006). After the Court of Appeals also denied defendant's application for leave to appeal, he filed his second application for leave to appeal in the Supreme Court, which was also denied. 480 Mich. 891 (2007). Defendant then filed a motion in the trial court for relief from judgment, which the trial court denied. Defendant applied for leave to appeal that decision in the Court of Appeals, which denied his application; the Supreme Court denied his application to appeal the Court of Appeals' denial. 486 Mich. 1042 (2010). In June 2016, after exhausting all available postconviction relief, defendant filed a second motion for relief from judgment in the trial court, arguing that the trial court had lacked jurisdiction to resentence him in 2006 because his application for leave to appeal in the Supreme Court was pending at the time. The trial court agreed and granted the motion, vacated defendant's sentence, and ordered resentencing. The prosecution appealed. The Court of Appeals, O'Brien, P.J., and Jansen and Stephens, JJ., upheld the trial court's ruling in a published per curiam opinion, holding that although defendant's successive motion for relief from judgment was barred by MCR 6.502(G), the trial court had lacked subject-matter jurisdiction to enter the second judgment of sentence, and it had correctly exercised its inherent power to recognize its lack of jurisdiction when it vacated that judgment and ordered another resentencing hearing. 321 Mich.App. 276 (2017). The prosecution sought leave to appeal that decision in the Supreme Court. In lieu of granting the application, the Supreme Court vacated the Court of Appeals' decision and remanded the case for reconsideration in light of Luscombe v Shedd's Food Prod Corp, 212 Mich.App. 537 (1995). 503 Mich. 1030 (2019). On remand, the Court of Appeals, O'Brien, P.J., and Jansen and Stephens, JJ., reversed the trial court's 2016 order vacating the 2006 resentencing. The Court noted the differences between a lack of jurisdiction and an error in the exercise of jurisdiction, discussed the two accepted categories of jurisdiction (subject-matter jurisdiction and personal jurisdiction), and cited a Florida law review article that advocated for a third category of jurisdiction to be recognized in Florida—procedural jurisdiction—to refer to the exercise of jurisdiction. The Court analyzed Luscombe before concluding that the trial court's resentencing before the remand order took effect was not a structural error caused by a lack of subject-matter jurisdiction but was, instead, error that was procedural in nature and was rendered harmless by the lack of any objection. 329 Mich.App. 604 (2019). Defendant sought leave to appeal in the Supreme Court. The Supreme Court directed oral argument on the application. 505 Mich. 1046 (2020).
In an opinion by Justice Clement, joined by Chief Justice McCormack and Justices Bernstein and Cavanagh, the Supreme Court, in lieu of granting leave to appeal, held:
When a judgment of sentence is appealed, the trial court loses subject-matter jurisdiction over those aspects of the case that are involved in the appeal. The restrictions on a trial court's authority in MCR 6.500 et seq. only limit a court's ability to review a judgment of conviction and sentence; although MCR 6.502(G)(2) does not contain an exception allowing successive motions for relief from judgment on the basis of jurisdictional errors, a trial court may vacate a judgment of sentence on such a motion when the court recognizes that it lacked subject-matter jurisdiction when the judgment was entered.
1. Subject-matter jurisdiction concerns a court's authority to hear and determine a case; the authority is not dependent on the particular facts of the case but, instead, is dependent on the character or class of the case pending. Michigan's 1963 Constitution and statutes set the authority of circuit courts and appellate courts to hear cases. Article VI, § 13 of the state Constitution provides that circuit courts have original jurisdiction in all matters not prohibited by law. In tandem with the constitutional grant of authority, MCL 600.601(1) provides that circuit courts have the power and jurisdiction over (1) that which was possessed by courts of record at common law, as altered by Michigan's Constitution, statutes, and rules of the Supreme Court; (2) that which was possessed by courts and judges in chancery in England on March 1, 1847, as altered by Michigan's Constitution, statutes, and rules of the Supreme Court; and (3) that which is prescribed by the rules of the Supreme Court. Under these provisions, a circuit court has jurisdiction over all felonies from the bindover from the district court. Article VI, § 10 of Michigan's Constitution provides that the jurisdiction of the Court of Appeals shall be provided by law. In turn, MCL 600.308(1) provides that the Court of Appeals has jurisdiction on appeals from all final judgments and final orders from the circuit court, court of claims, and probate court. Thus, circuit courts have original jurisdiction and the Court of Appeals has appellate jurisdiction. MCR 7.215(F)(1)(a) provides that a 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.
2. People v George, 399 Mich. 638 (1977), controlled the outcome of the case. Analyzing former court rule GCR 1963, 802.1, the George Court concluded that the circuit court had lost jurisdiction over a case once an appeal had been filed in the Court of Appeals and that jurisdiction would not revest in the circuit court until the Supreme Court resolved the prosecution's pending application for leave to appeal that decision; accordingly, until the pending application was addressed, the circuit court lacked jurisdiction to retry the defendant. Under our present rule, MCR 7.203(A), which is materially similar to the court rule analyzed in George, the Court in People v Swafford, 483 Mich. 1 (2009), likewise concluded that the circuit court lacked jurisdiction to try or convict the defendant when the defendant's application was still pending in the Supreme Court. A trial court's original jurisdiction is fundamentally incompatible with an appellate court's appellate jurisdiction. To that end, a trial court is divested of subject-matter jurisdiction over those aspects of the case involved in an appeal; this rule preserves the integrity of the appellate process and prevents confusion related to having the same matter before two courts at the same time. Although both state and federal courts often use the term "jurisdiction" imprecisely—referring to subject-matter jurisdiction, personal jurisdiction, and a court's general authority to take action—the George Court's consistent use of the term "jurisdiction" and the facts of the case support the conclusion that the Court was referring to subject-matter jurisdiction, not to its exercise of jurisdiction. Although there is a presumption against divesting a court of its jurisdiction once it has attached, that presumption applies to the acquisition and retaining of original jurisdiction among trial courts, not to the transfer of jurisdiction during the appellate process. In this case, defendant's appeal of the trial court's judgment of sentence divested the trial court of subject-matter jurisdiction of those aspects of the case involved in the appeal. Jurisdiction remained with the appellate courts after the Court of Appeals' 2006 judgment, which included a remand for resentencing, until the Supreme Court disposed of defendant's application for leave to appeal the Court of Appeals' judgment. The Court of Appeals' decision in Luscombe did not undermine George because it was factually distinguishable: Luscombe involved the trial court acting before the Court of Appeals could complete a custodial task with no substantive impact while in George, the trial court acted before the Supreme Court rendered a decision on a party's pending application, a decision with the potential for fundamental substantive impact. Therefore, the trial court lacked subject-matter jurisdiction when it resentenced defendant in 2006 before the Supreme Court rendered a decision on defendant's application.
3. Defects in a court's subject-matter jurisdiction render a judgment void ab initio. Courts must take notice of the limits of their authority and act accordingly at any point in the proceedings, whether in the trial court, on direct appeal, or on collateral attack. The lack of subject-matter jurisdiction cannot be ignored for purposes of finality because the existence of subject-matter jurisdiction concerns the trial court's authority to bind the parties to the action at hand. MCR 6.501 provides that a judgment of conviction and sentence entered by the circuit court that is not subject to appellate review under Subchapters 7.200 or 7.300 may be reviewed only in accordance with MCR 6.500 et seq. Other than the two exceptions in MCR 6.502(G)(2) (a retroactive change in law that occurred after the first motion for relief from judgment was filed or a claim of new evidence that was not discovered before the first such motion), MCR 6.502(G)(1) provides that one and only one motion for relief from judgment may be filed with regard to a conviction. The MCR 6.500 et seq. restrictions on a trial court's authority only limit a court's ability to review a judgment of conviction and sentence, and although MCR 6.502(G)(2) does not contain an exception for jurisdictional errors, a trial court may vacate a judgment of sentence on a successive motion for relief from judgment when the court recognizes that it lacked subject-matter jurisdiction when the judgment was entered. In this case, the 2006 resentencing judgment was void ab initio because the trial court lacked subject-matter jurisdiction to resentence defendant while defendant's application was pending in the Supreme Court. Thus, there was no valid sentence to review in 2016, and MCR 6.501 did not limit the trial court's authority to recognize and remedy a subject-matter jurisdiction error even though it was raised in a successive motion for relief from judgment. Accordingly, the trial court did not err when it granted defendant's successive motion for relief from judgment, vacated defendant's 2006 sentence, and ordered resentencing; the Court of Appeals' judgment to the contrary was reversed.
Reversed and remanded for resentencing.
Justice Viviano, joined by Justices Zahra and Welch, dissenting, disagreed with the majority's conclusion that the trial court lacked subject-matter jurisdiction to resentence defendant in 2006 while his application was pending in the Supreme Court. Subject-matter jurisdiction is the right of a court to exercise judicial power over a class of cases and can generally be decided at the outset on the basis of the pleadings; subject-matter jurisdiction is not about the particular case before the court but, rather, the abstract power to try a case of that kind or character. Subject-matter jurisdiction is distinct from claims-processing rules, the elements of a cause of action, and a trial court's erroneous exercise of jurisdiction. Article VI, § 13 of Michigan's Constitution and MCL 600.601 define the class of cases over which circuit courts have subject-matter jurisdiction. While circuit court jurisdiction over a particular subject matter can only be denied by those provisions, it is presumed that a circuit court continues to have subject-matter jurisdiction unless divestiture is required by the clear mandate of law, with any doubt resolved in favor of retaining jurisdiction. Our court rules did not divest the trial court of subject-matter jurisdiction while defendant's application was pending in the Supreme Court. MCR 7.208(A)—which provides that after a claim of appeal is filed or leave to appeal is granted the trial court or tribunal may not set aside or amend the judgment or order appealed from except in a few enumerated circumstances— is the only rule that restricts a trial court's authority while a case is on appeal, and nothing in that rule purported to divest the trial court of subject-matter jurisdiction. MCR 7.208 does not distinguish between classes of cases. Two court rules, MCR 7.215(F)(1)(a) and MCR 7.305(C)(7)(a), restrict a trial court's power when a case is before the Supreme Court, but those rules also did not divest the trial court of subject-matter jurisdiction in this case. Under MCR 7.215(F)(1)(a), a Court of Appeals judgment is not effective until after the time for filing an application in the Supreme Court has passed or after the Supreme Court has otherwise disposed of the case; the rule only concerns the effectiveness of the Court of Appeals' judgment, not the trial court's authority or subject-matter jurisdiction. In turn, MCR 7.305(C)(7) provides that when a Court of Appeals judgment remands to the trial court for further proceedings in an appeal by right or by leave granted, the case is automatically stayed on remand unless ordered otherwise by the Court of Appeals or the Supreme Court. The necessity of a stay in that situation simply stops, temporarily, the trial court from taking actions it would otherwise be empowered to take. Thus, neither court rule strips a trial court of subject-matter jurisdiction or speaks to the general class of cases a circuit court can hear. Justice Viviano disagreed with the majority's interpretation of the Court's holding in George; contrary to the majority's assertion, George did not suggest that its use of the term "jurisdiction" referred to subject-matter jurisdiction rather than the court's mere legal power or authority to act. The majority's interpretation of George ignored the persuasive reasoning from other states that have concluded that trial courts are not divested of subject-matter jurisdiction during any appeal. The majority's decision effectively carved out an exception to the subject-matter jurisdiction granted to circuit courts by Michigan's Constitution, statutes, and court rules. Justice Viviano would have held that the trial court had subject-matter jurisdiction over the case when it was before that court and did not lose that jurisdiction when defendant filed his application in the Supreme Court in 2006.
Argued on application for leave to appeal on April 7, 2021.
Bridget M. McCormack, Chief Justice, Brian K. Zahra David F. Viviano Richard H. Bernstein Elizabeth T. Clement Megan K. Cavanagh Elizabeth M. Welch, Justices.
BEFORE THE ENTIRE BENCH
OPINION
Clement, J.
At issue in this case is whether the trial court lacked subject-matter jurisdiction when it resentenced defendant in 2006 pursuant to a Court of Appeals order while defendant's application for leave to appeal that order was still pending in this Court. We hold that it did. We also hold that the trial court did not err 10 years later in 2016 when it granted defendant relief on this ground, which was raised in defendant's successive motion for relief from judgment.
I. FACTS AND PROCEDURAL HISTORY
In November 2004, defendant, Gregory C. Washington, was convicted of second-degree murder, MCL 750.317; two counts of assault with intent to commit murder (AWIM), MCL 750.83; possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b; and felon in possession of a firearm (felon-in-possession), MCL 750.224f. The trial court sentenced defendant as a second-offense habitual offender, MCL 769.10, to 40 to 60 years' imprisonment for the second-degree murder conviction; the 40-year minimum sentence was a 12-month upward departure from the sentencing guidelines range. The trial court also sentenced defendant to concurrent life sentences for each AWIM conviction, to 2 to 71/2 years' imprisonment for the felon-in-possession conviction, and to a mandatory consecutive 2 years' imprisonment for the felony-firearm conviction.
The Court of Appeals previously described the relevant procedural history of this case as follows:
On January 7, 2005, defendant appealed as of right his convictions and sentences on a number of grounds.2 Relevant here, defendant challenged the propriety of the trial court's upward departure from the sentencing guidelines range for second-degree murder without stating on the record "substantial and compelling reasons" for the departure as required under MCL 769.34(3).3 In a June 13, 2006 unpublished opinion, [the Court of Appeals] affirmed defendant's convictions, but agreed that "the trial court did not satisfy MCL 769.34(3) when imposing a sentence outside the prescribed sentencing guidelines range." People v Washington, unpublished per curiam opinion of the Court of Appeals, issued June 13, 2006 (Docket No. 260155), p 8. [The Court of Appeals] remanded for resentencing, directing the trial court to reconsider the propriety of its sentence and articulate substantial and compelling reasons for any departure as required by MCL 769.34(3). Id. at 8-9.
On August 8, 2006, defendant filed an application for leave to appeal in the Michigan Supreme Court. On October 4, 2006, while the application was still pending, the trial court resentenced defendant pursuant to [the Court of Appeals'] June 13, 2006 opinion and remand, imposing identical sentences and offering a number of justifications for the departure. The Supreme Court denied defendant's application for leave to appeal on December 28, 2006. People v Washington, 477 Mich. 973 (2006).
On December 4, 2006, about three weeks before the Supreme Court denied defendant's initial application, defendant filed in [the Court of Appeals] a delayed application for leave to appeal the resentencing order, again arguing that the trial court failed to articulate on the record the required "substantial and compelling reasons" for the upward departure from defendant's sentencing guidelines for second-degree murder. [The Court of Appeals] denied defendant's application "for lack of merit." People v Washington, unpublished order of the Court of Appeals, entered May 4, 2007 (Docket No. 274768). Defendant filed an application for leave to appeal in the Michigan Supreme Court on June 28, 2007, which that Court denied. People v Washington, 480 Mich. 891 (2007).
Several months later, on March 25, 2008, defendant filed a motion for relief from judgment in the trial court pursuant to MCR 6.502, raising claims of (1) insufficient evidence, (2) denial of his right to present an insanity defense, (3) ineffective assistance of trial counsel, and (4) ineffective assistance of appellate counsel. On July 9, 2008, the trial court denied defendant's motion under MCR 6.508(D)(3) for failure to demonstrate good cause for not raising the issues in a prior appeal and failure to show actual prejudice. [The Court of Appeals] denied defendant's July 8, 2009 delayed application for leave to appeal the trial court's decision, People v Washington, unpublished order of the Court of Appeals, entered October 19, 2009 (Docket No. 292891), and the Michigan Supreme Court denied defendant leave to appeal [the Court of Appeals'] denial, People v Washington, 486 Mich. 1042 (2010).
On June 22, 2016, after exhausting all available postconviction relief, defendant filed his second motion for relief from judgment—the motion giving rise to the instant appeal. Defendant challenged his sentences on jurisdictional grounds, arguing that the trial court's October 4, 2006 order after resentencing was invalid because the court lacked jurisdiction to resentence defendant while his application remained pending before the Michigan Supreme Court. In response, the prosecution argued that defendant's successive motion for relief from judgment was clearly barred by MCR 6.502(G), which prohibits successive motions for relief from judgment unless there has been a retroactive change in the law or new evidence has been discovered. In a November 22, 2016 written order and opinion, the trial court indicated its agreement with the prosecution's argument but noted that the prosecution had failed to address the jurisdictional issue, which "may be raised at any time." The trial court concluded that under MCR 7.215(F)(1)(a), MCR 7.305(C)(6)(a), and relevant caselaw, it had lacked jurisdiction to enter the October 4, 2006 judgment of sentence. The trial court granted defendant's motion, vacated defendant's sentences, and ordered resentencing. 4
2 Defendant's issues on appeal included ineffective assistance of trial counsel for failure to raise an insanity defense and failure to file a motion for a new trial based on the assertion that defendant's convictions were against the great weight of the evidence, violation of a sequestration order by the prosecution's witnesses, and prosecutorial misconduct.
3 On the date of defendant's sentencing, MCL 769.34(3) provided that "[a] court may depart from the appropriate sentence range established under the sentencing guidelines . . . if the court has a substantial and compelling reason for that departure and states on the record the reasons for departure." MCL 769.34(3) was later struck down in People v Lockridge, 498 Mich. 358, 391-392; 870 N.W.2d 502 (2015), and the substantial and compelling reason requirement was replaced with a requirement that a departure be reasonable.
4 Defendant also requested that, on resentencing, the trial court determine the applicable guidelines range for both defendant's second-degree murder conviction and his AWIM convictions and take them into account pursuant to Lockridge, 498 Mich. 358. The trial court concluded that defendant was not entitled to any relief under Lockridge because the rule articulated in that case does not retroactively apply to sentences on collateral review. Defendant does not challenge this decision on appeal.[People v Washington, 321 Mich.App. 276, 279-282; 908 N.W.2d 924 (2017).]
The Court of Appeals affirmed the trial court's order. Id. at 278. The Court held that "[i]t is indisputable that the trial court lacked jurisdiction" to perform the 2006 resentencing because of the trial court's violation of MCR 7.215(F)(1)(a) and MCR 7.305(C)(6)(a)—i.e., because the trial court resentenced defendant before the Court of Appeals' 2006 remand order was final. Id. at 284. The Court also rejected the prosecutor's argument that the trial court's mistake was merely procedural, reasoning that this Court had characterized a similar error as a jurisdictional error in People v Swafford, 483 Mich. 1, 6 n 5; 762 N.W.2d 902 (2009). Id. at 285. Because the trial court lacked subject-matter jurisdiction when it resentenced defendant, the Court concluded that the trial court's resentencing was void. Id.
With regard to the manner in which defendant's argument was raised—a successive motion for relief from judgment—the Court of Appeals agreed with the prosecutor that MCR 6.502(G)(2) provides only two exceptions to the prohibition of successive motions for relief from judgment and that neither of the two exceptions encompasses errors in subject-matter jurisdiction. Id. at 286. However, the Court disagreed that the trial court impermissibly created a third exception to the successive-motion bar through its order vacating the judgment of sentence and ordering resentencing. Id. Instead, the Court reasoned that the trial court had properly used its "inherent power to 'recognize its lack of jurisdiction or any pertinent boundaries on its proper exercise'" of power. Id., quoting People v Clement, 254 Mich.App. 387, 394; 657 N.W.2d 172 (2002).
The prosecutor applied for leave to appeal in this Court, and we heard oral argument on the application in October 2018. People v Washington, 905 N.W.2d 597 (2018). We vacated the previous judgment of the Court of Appeals and remanded back to that court for reconsideration in light of Luscombe v Shedd's Food Prod Corp, 212 Mich.App. 537; 539 N.W.2d 210 (1995). People v Washington, 503 Mich. 1030 (2019).
On remand, the Court of Appeals reversed the trial court's order vacating the resentencing. People v Washington (On Remand), 329 Mich.App. 604, 606; 944 N.W.2d 142 (2019). The Court noted that, despite a recognized difference between a lack of jurisdiction and an error in the exercise of jurisdiction, courts habitually use the term "jurisdiction" generally instead of specifying which type of error is at issue. Id. at 611-612. Considering that a lack of jurisdiction renders an action void and that an error in the exercise of jurisdiction renders an action only voidable, this specification is essential. See id. The Court of Appeals also extensively cited a law review article that advocated for the recognition in Florida of a third category of jurisdiction—"procedural jurisdiction"—to refer to the exercise of jurisdiction. Id. at 612.
The Court of Appeals determined that Luscombe concerned an error in the exercise, rather than the existence, of jurisdiction. Id. at 613. The Court understood Luscombe as "obviously not discussing subject-matter or personal jurisdiction" when analyzing "a trial court's surrendering jurisdiction of a particular case to an appellate court and then reacquiring it after appellate proceedings," because subject-matter and personal jurisdiction do not "come[] or go[] depending on a case's procedural posture[.]" Id. The Luscombe Court had held that the trial court's premature action in response to the Court of Appeals order at issue—trying the defendant after the period for appeal expired without the filing of an application but before this Court returned the record to the trial court—was merely a procedural error subject to harmless-error review. Id.
Ultimately, the Court concluded that "[i]n light of the authorities endeavoring to observe the distinction between the existence of subject-matter jurisdiction and the exercise of it, and in light especially of the Supreme Court's call for deciding this case in accord with Luscombe," the trial court's resentencing before the remand order took effect "was not a structural error occasioned by a lack of subject-matter jurisdiction." Id. at 614. Instead, the Court determined that the error was "merely procedural in nature" and was "rendered harmless by the lack of any objection." Id. Accordingly, the Court of Appeals reversed the trial court's November 22, 2016 order vacating its October 4, 2006 judgment of sentence. Id.
Defendant subsequently applied for leave to appeal in this Court, and we directed oral argument on the application regarding the following issues: "(1) whether the trial court's act of resentencing the defendant while an application for leave to appeal was pending in this Court constituted a defect in subject-matter jurisdiction; and (2) if so, whether defects in subject-matter jurisdiction can be challenged in a successive motion for relief from judgment." People v Washington, 505 Mich. 1046 (2020).
II. CATEGORIZATION OF ERROR
As the lower courts and parties have agreed, the trial court erred when it resentenced defendant in 2006 while defendant's application for leave to appeal in this Court was pending. Under MCR 7.215(F)(1)(a), "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 this case, defendant timely filed an application for leave to appeal from the Court of Appeals' 2006 decision, and neither the Court of Appeals nor this Court issued an order affecting the automatic stay of the Court of Appeals' judgment. This Court did not render a decision on defendant's application for leave to appeal until December 28, 2006. Accordingly, the Court of Appeals' remand order was not final when the trial court resentenced defendant on October 4, 2006.
Under today's decision, the trial court must once again resentence defendant, but not because the last sentence imposed in 2006 was erroneous and not because defendant has been prevented from raising any errors with the process on direct appeal. And the resentencing will serve as a new source for potential errors that can be appealed and collaterally attacked for years to come. All of this because the last sentencing occurred while an application for leave to appeal was pending. I do not believe this decision comports with the law, and therefore, I respectfully dissent. --------- Notes:
Filing Claim of Appeal; Fees. Every appeal to the Court of Appeals shall be taken by filing a claim of appeal with the Court of Appeals and paying the entry fee required by sub-rule 822.3(1). A docket number shall thereupon be assigned to such appeal by the clerk of the Court of Appeals. See also sub-rule 803.5. The Court of Appeals shall thereupon have jurisdiction of the case. No such appeal shall be dismissed except on stipulation, on special motion and notice, or by the Court of Appeals on its own motion, subject, however, to the provisions of Rule 809.
When the Court of Appeals issues an opinion that remands the case to the trial court, MCR 7.305(C)(6)(a) provides that "an application for leave to appeal may be filed within . . . 56 days in criminal cases, after the date of" the opinion. The Court of Appeals issued its opinion remanding for resentencing on June 13, 2006. Defendant filed an application for leave to appeal the Court of Appeals' judgment on August 8, 2006, exactly 56 days later.
At issue for our determination is whether this error is an error of subject-matter jurisdiction. This is a question of law that this Court reviews de novo. Hillsdale Co Senior Servs, Inc v Hillsdale Co, 494 Mich. 46, 51; 832 N.W.2d 728 (2013).
Subject-matter jurisdiction is a legal term of art that concerns a court's authority to hear and determine a case. Bowie v Arder, 441 Mich. 23, 36; 490 N.W.2d 568 (1992). This authority is "not dependent on the particular facts of the case" but, instead, is dependent on the character or class of the case pending. People v Lown, 488 Mich. 242, 268; 794 N.W.2d 9 (2011) (quotation marks, citations, and emphasis omitted).
The courts do not have inherent subject-matter jurisdiction; it is derived instead from our constitutional and statutory provisions. Under Michigan's 1963 Constitution, circuit courts have "original jurisdiction in all matters not prohibited by law . . . ." Const 1963, art VI, § 13. MCL 600.601 similarly provides:
(1) The circuit court has the power and jurisdiction that is any of the following:
(a) Possessed by courts of record at the common law, as altered by the state constitution of 1963, the laws of this state, and the rules of the supreme court.
(b) Possessed by courts and judges in chancery in England on March 1, 1847, as altered by the state constitution of 1963, the laws of this state, and the rules of the supreme court.
(c) Prescribed by the rules of the supreme court.
In construing these provisions, we have recognized that circuit courts have subject-matter jurisdiction over felony cases. See Lown, 488 Mich. at 268; MCR 6.008(B) ("The circuit court has jurisdiction over all felonies from the bindover from the district court unless otherwise provided by law.").
The Michigan Constitution and the Legislature also provide for the appellate jurisdiction of the Court of Appeals. "The jurisdiction of the court of appeals shall be provided by law," Const 1963, art VI, § 10, and MCL 600.308(1) accordingly provides that "[t]he court of appeals has jurisdiction on appeals from all final judgments and final orders from the circuit court, court of claims, and probate court . . . ." See also MCR 7.203(A) through (D).
Under these constitutional and statutory provisions, in the present case, the trial court undoubtedly had subject-matter jurisdiction over defendant's case once he was bound over by the district court. See MCR 6.008(B); Lown, 488 Mich. at 268. Further, the Court of Appeals had appellate jurisdiction over defendant's appeal of right from the trial court's judgment. See MCL 600.308(1). Given the trial court's initial jurisdiction over the case and the Court of Appeals' subsequent appellate jurisdiction, the question this Court must answer is whether the trial court was divested of subject-matter jurisdiction when the Court of Appeals assumed its appellate jurisdiction over the case.
This Court answered this question under the former court rules when it encountered an error similar to the present one in People v George, 399 Mich. 638, 640; 250 N.W.2d 491 (1977). Therein, the defendant challenged the jurisdiction of the trial court to retry him while the prosecutor's application for leave to appeal the Court of Appeals' order that remanded the case for retrial was still pending before this Court. Id. at 639-640. This Court reasoned that, pursuant to GCR 1963, 802.1, "jurisdiction of this case was vested in the Court of Appeals, and thus removed from the circuit court" upon the defendant's filing of his claim to appeal in the Court of Appeals. Id. at 640. And until this Court resolved the prosecutor's pending application for leave to appeal, "jurisdiction is not revested in the circuit court." Id. Accordingly, this Court concluded that the trial court lacked jurisdiction to retry the defendant. Id. More recently, under the present court rules, we commented that "the trial court did not have proper jurisdiction to bring defendant to trial or convict defendant" when the defendant's application for leave to appeal was still pending before this Court. See People v Swafford, 483 Mich. 1, 7 n 5; 762 N.W.2d 902 (2009).
GCR 1963, 802.1 provided:
The prosecutor does not argue that George should be overturned. Instead, the prosecutor argues that when this Court referred to jurisdiction in George, it meant the trial court's exercise of jurisdiction, not the existence of subject-matter jurisdiction. The prosecutor is correct that there is a widespread and unfortunate practice among both state and federal courts of using the term "jurisdiction" imprecisely, to refer both to the subject-matter and the personal jurisdiction of the court, and to the court's general authority to take action. See Union Pacific R Co v Brotherhood of Locomotive Engineers & Trainmen, 558 U.S. 67, 81; 130 S.Ct. 584; 175 L.Ed.2d 428 (2009) ("Recognizing that the word 'jurisdiction' has been used by courts, including this Court, to convey 'many, too many, meanings,' we have cautioned, in recent decisions, against profligate use of the term.") (citation omitted). See also Jackson City Bank & Trust Co v Fredrick, 271 Mich. 538, 544-545; 260 N.W. 908 (1935). However, there are no indications in the George opinion that this Court was engaging in such casual use of the term jurisdiction. In fact, the language used by this Court in the George opinion—its consistent use of the term "jurisdiction" rather than "power" or "authority," as well as its consistent use of the term "vest"—affirmatively indicates otherwise. See George, 399 Mich. at 640; see also Detroit Police Officers Ass'n v Detroit, 419 Mich. 1207 (1984) (citing George in support of the conclusion that "[a]ny action by the trial court setting aside its order granting defendant's motion for summary deposition [taken while an application for leave to appeal was pending in this Court] is void for want of jurisdiction").
Further, the circumstances in George support the conclusion that this Court was indeed referring to the existence of subject-matter jurisdiction and not to its exercise of jurisdiction. When the trial court was attempting to retry the defendant, this Court, through the prosecutor's application for leave to appeal, had the ability to greatly alter the course of the case, including obviating the need for retrial. It is this fundamental incompatibility between the trial court's original jurisdiction and the appellate court's appellate jurisdiction that has led many of our sister courts to hold that "[t]he effect of the appeal is to remove the subject matter of the order from the jurisdiction of the lower court . . . ." Varian Med Sys, Inc v Delfino, 35 Cal 4th 180, 197; 106 P.3d 958 (2005) (quotation marks and citation omitted). . See also In re Whispering Pines Estates, Inc, 369 BR 752, 757 (Bankr CA 1, 2007) ("The purpose of the general rule is to avoid the confusion of placing the same matter before two courts at the same time and preserve the integrity of the appeal process."). This reasoning also supports our holding in George.
Having clarified George, we apply it here to hold that defendant's appeal from the trial court's 2004 judgment of sentence divested the trial court of subject-matter jurisdiction over those aspects of the case involved in the appeal. When the Court of Appeals rendered its 2006 judgment, which included a remand for resentencing, jurisdiction remained with the appellate courts until this Court's disposition of defendant's application for leave to appeal the Court of Appeals' judgment. See George, 399 Mich. at 640; MCR 7.215(F)(1)(a); MCR 7.305(C)(7)(a). The trial court accordingly lacked subject-matter jurisdiction when it resentenced defendant before this Court rendered a decision regarding defendant's appeal.
The Court of Appeals' decision in Luscombe, 212 Mich.App. 537, does not undermine our application of George. In Luscombe, the Court of Appeals considered the effect of the trial court's error in proceeding to trial before the return of the record to the trial court following a prior appeal. Id. at 538. The Court categorized this error as an error in the exercise of jurisdiction and not an error in the existence of subject-matter jurisdiction. Id. at 541-542. It reasoned that "where it is apparent from the allegations of a complaint that the matter alleged is within the class of cases in which a particular court has been empowered to act, subject-matter jurisdiction is present" and "[a]ny subsequent error in the proceedings is only error in the 'exercise of jurisdiction[.] Id. (citation omitted). However, the Court of Appeals also specifically differentiated the error at issue from George, stating, "[U]nlike that situation in George, . . . no appellate action was pending or available to plaintiff at the time this case came on for trial[.]" Id. at 542. The only action available for the Court of Appeals to take was "the clerical process of re-transmission [of the record] to the lower court," as the appeal period to this Court had expired. Id. (quotation marks and citation omitted). We agree that the situation in Luscombe, wherein the trial court acted before the Court of Appeals could complete a custodial task with no substantive impact, is not analogous to the situation here and in George, wherein the trial court acted before this Court could render a decision as to a party's pending application for leave to appeal, a decision with potentially fundamental substantive impact.
Outside George and Luscombe, the prosecutor argues that because there is a presumption against "divesting a court of its jurisdiction once it has properly attached, and any doubt is resolved in favor of retaining jurisdiction," People v Veling, 443 Mich. 23, 32; 504 N.W.2d 456 (1993), the trial court maintains subject-matter jurisdiction over a case as it proceeds to appeal. Even if this position would not require overruling George—which it would, and the prosecutor offers no argument in favor of this action—we disagree. Veling concerned 1988 amendments of the Revised Judicature Act; those amendments allowed prosecutors to try juvenile defendants accused of certain enumerated crimes in circuit court rather than juvenile court. Id. at 25-27. On appeal, this Court considered whether the circuit court maintained jurisdiction to sentence a juvenile offender when the juvenile was convicted only of lesser included nonenumerated offenses at trial and whether the circuit court had jurisdiction in the first instance to try the juvenile defendant for nonenumerated offenses arising from the same transaction as the enumerated offense. Id. at 27. This Court answered both issues in the affirmative. Id. at 42-43. In so doing, this Court relied, in part, on the principle that "[i]n the exercise of circuit court jurisdiction over adult offenders, there is a presumption against divesting a court of its jurisdiction once it has properly attached, and any doubt is resolved in favor of retaining jurisdiction." Id. at 32 (emphasis added). As the context demonstrates, Veling concerned the acquisition and retaining of original jurisdiction among trial courts; it did not concern the transfer of jurisdiction during the appellate process.
Further, even if that presumption existed regarding the vertical movement of a case from trial court to appeal, our jurisdictional rules plainly establish that the circuit court has original jurisdiction and the Court of Appeals has appellate jurisdiction. See Const 1963, art VI, § 13; MCL 600.308(1). And while these provisions may not explicitly state that the Court of Appeals' appellate jurisdiction is exclusive to the original jurisdiction of the circuit courts, as discussed earlier, the two are fundamentally incompatible when exercised simultaneously upon the same aspects of a case. Given the plain language of the constitutional and statutory provisions and the incompatibility between appellate jurisdiction of the Court of Appeals and the original jurisdiction of the circuit court, any presumption against divestment would be defeated.
In sum, we find George applicable precedent to the case at bar and see no reason to overrule George or to narrow its holding. As in George, the trial court here lacked subject-matter jurisdiction when it resentenced defendant pursuant to the Court of Appeals order while defendant's application for leave to appeal was pending in this Court.
III. SUCCESSIVE MOTION FOR RELIEF FROM JUDGMENT
Having determined that the trial court lacked subject-matter jurisdiction when it resentenced defendant, we must next determine whether defendant is entitled to relief.
It is a longstanding rule that defects in a court's subject-matter jurisdiction render a judgment void ab initio. Fox v Bd of Regents of Univ of Mich, 375 Mich. 238, 242; 134 N.W.2d 146 (1965). Further, this Court has also recognized that courts are bound to take notice of the limits of their authority and act accordingly. See id. at 242. Courts may take such action at any point in the proceedings—whether in the trial court, on direct appeal, or on collateral attack—and by their own initiative or upon motion of the parties. See Attorney General ex rel O'Hara v Montgomery, 275 Mich. 504, 510; 267 N.W. 550 (1936); Jackson City Bank, 271 Mich. at 544 ("When there is a want of jurisdiction . . ., the action thereof is void because of its want of jurisdiction, and consequently its proceedings may be questioned collaterally as well as directly.").
The prosecutor argues that, despite these longstanding rules rendering the trial court's judgment of sentence void, defendant is not entitled to relief because defendant raised this argument in a successive motion for relief from judgment, and the court rules prohibit consideration of this argument in a successive motion for relief from judgment.Motions for relief from judgment are governed by MCR 6.500 et seq. MCR 6.501 provides that "a judgment of conviction and sentence entered by the circuit court not subject to appellate review under subchapters 7.200 or 7.300 may be reviewed only in accordance with the provisions of this subchapter." Generally speaking, "one and only one motion for relief from judgment may be filed with regard to a conviction." MCR 6.502(G)(1). MCR 6.502(G)(2) provides two exceptions to this prohibition of successive motions for relief from judgment: "a retroactive change in law that occurred after the first motion for relief from judgment was filed or a claim of new evidence that was not discovered before the first such motion." The prosecutor argues that defendant has not alleged either of these exceptions in his successive motion for relief from judgment and that, therefore, MCR 6.502(G)(1) precludes defendant from obtaining relief.
The prosecutor is correct that a lack of subject-matter jurisdiction is not encompassed by either of MCR 6.502(G)(2)'s exceptions to the successive-motion bar of MCR 6.502(G)(1). However, the restrictions on a trial court's authority contained in MCR 6.500 et seq. are not implicated here because these provisions only limit a court's ability to review a "judgment of conviction and sentence," and as already discussed, our caselaw establishes that the trial court's judgment of sentence, rendered when the trial court lacked subject-matter jurisdiction, was void ab initio. Thus, there was no valid sentence to review, and MCR 6.501 does not limit a trial court's ability to recognize a subject-matter jurisdiction error and remedy it.
Rather, upon defendant's raising of the issue, the trial court had the duty to recognize its lack of subject-matter jurisdiction and act accordingly. See Fox, 375 Mich. at 242. In light of these longstanding rules, the trial court did not err when it granted relief to defendant. The trial court's judgment of sentence was void and defendant's failure to raise the issue on direct appeal, on his first motion for relief from judgment, or in a habeas petition cannot render the judgment of sentence valid. Unlike other errors that a defendant eventually loses the ability to raise, the lack of subject-matter jurisdiction cannot be ignored for purposes of finality because the existence of subject-matter jurisdiction goes to the trial court's very authority to bind the parties to the action at hand. See Jackson City Bank, 271 Mich. at 545 (stating that an action taken without subject-matter jurisdiction is void and "of no more value than as though [it] did not exist"). The trial court acted in accordance with its duty to recognize its lack of subject-matter jurisdiction. Therefore, although MCR 6.502(G)(2) does not contain an exception for jurisdictional errors, the trial court did not err when it vacated its earlier judgment of sentence and set the matter for resentencing.
IV. CONCLUSION
The trial court lacked subject-matter jurisdiction when it resentenced defendant in 2006 while defendant's application for leave to appeal was pending in this Court. Accordingly, the 2006 judgment of sentence is void. Further, although defendant raised this argument in a successive motion for relief from judgment and jurisdictional error is not an exception to the successive-motion bar, the trial court did not err by vacating its judgment of sentence and setting the matter for resentencing in 2016. Trial courts are obligated to take notice of their own jurisdictional limits and act accordingly when jurisdiction is lacking, and that is exactly what the trial court did here. Therefore, we reverse the judgment of the Court of Appeals and remand to the trial court for resentencing consistent with its 2016 order.
Viviano, J. (dissenting).
Defendant, Gregory C. Washington, was resentenced in 2006 pursuant to a Court of Appeals judgment. No one contends that there were substantive defects with either the judgment or the subsequent resentencing. Nor does anyone claim that the trial court lacked the general authority to resentence in this class of cases. Nevertheless, the majority grants defendant a pro forma resentencing on the basis that the trial court lacked subject-matter jurisdiction in 2006 because an application to appeal in our Court was pending at the time. But the relevant constitutional provisions, statutes, and court rules gave the trial court subject-matter jurisdiction over this case and did not divest it of that jurisdiction during the appeal. Nothing in our precedent requires a contrary conclusion. Accordingly, I would hold that the trial court did not lack subject-matter jurisdiction when it resentenced defendant in 2006.
I
Jurisdiction is an elusive concept that has taken on many uses. But the core meaning of subject-matter jurisdiction is clear enough; it is
the right of the court to exercise judicial power over that class of cases; not the particular case before it, but rather the abstract power to try a case of the kind or character of the one pending; and not whether the particular case is one that presents a cause of action, or under the particular facts is triable before the court in which it is pending, because of some inherent facts which exist and may be developed during the trial.
"A court either has, or does not have, subject-matter jurisdiction over a particular case."For example, in a prosecution of breaking and entering, the "subject matter" for purposes of jurisdiction is the crime of breaking and entering. A jurisdictional rule of this nature stands in contrast to claims-processing rules and to a cause of action's elements, which have been commonly mischaracterized as jurisdictional. It is also distinct from a court's erroneous exercise of jurisdiction. Given that subject-matter jurisdiction concerns a court's power to try the type of case before it, the issue of whether the court has that power generally can be decided at the outset on the basis of the pleadings.
The sources of subject-matter jurisdiction are critical for understanding whether the trial court here lost that jurisdiction. Because subject-matter jurisdiction concerns the abstract power to try classes of cases, "[i]t is fundamental that the classes of cases over which the circuit courts have subject-matter jurisdiction are defined by this state's constitution and Legislature." Under Michigan's 1963 Constitution, circuit courts
shall have original jurisdiction in all matters not prohibited by law; appellate jurisdiction from all inferior courts and tribunals except as otherwise provided by law; power to issue, hear and determine prerogative and remedial writs; supervisory and general control over inferior courts and tribunals within their respective jurisdictions in accordance with rules of the supreme court; and jurisdiction of other cases and matters as provided by rules of the supreme court.
The general statute on the circuit courts' jurisdiction states, in pertinent part:
(1) The circuit court has the power and jurisdiction that is any of the following:
(a) Possessed by courts of record at the common law, as altered by the state constitution of 1963, the laws of this state, and the rules of the supreme court.
(b) Possessed by courts and judges in chancery in England on March 1, 1847, as altered by the state constitution of 1963, the laws of this state, and the rules of the supreme court.
(c) Prescribed by the rules of the supreme court.
More specifically, we have recognized that the circuit courts "unquestionably have jurisdiction over felony cases." "Jurisdiction of a criminal defendant is acquired by the circuit court 'upon the filing . . . of the return of the magistrate before whom [the defendant] had waived preliminary examination' or 'before whom the defendant had been examined[.]' "
Relatedly, we have stated that "[c]ircuit court jurisdiction over a particular subject matter is denied only by constitution or statute." But "[t]he divestiture of jurisdiction from the circuit court is an extreme undertaking." As a result, "[i]n dealing with statutes intended to affect or claimed to affect the continuance of jurisdiction in courts of original and general authority the law has always recognized a principle of construction which served to favor the retention of jurisdiction." Thus, we presume that a circuit court continues to have subject-matter jurisdiction unless divestiture is required by the "clear mandate of the law . . . ." "[A]ny doubt is resolved in favor of retaining jurisdiction."
II
Here, the trial court clearly had subject-matter jurisdiction over the case when it came before the court. The question is whether it lost that jurisdiction when defendant filed his application for leave to appeal in this Court. No constitutional or statutory provision divests the trial court of subject-matter jurisdiction when a party files an application for leave to appeal in this Court. The only rule that restricts the trial court's authority while a case is on appeal to the Court of Appeals is MCR 7.208(A), which states, "After a claim of appeal is filed or leave to appeal is granted, the trial court or tribunal may not set aside or amend the judgment or order appealed from" except in a few enumerated circumstances.
But this rule leaves a lot for a trial court to do while a case is on appeal. Indeed, the only limitation concerns the trial court's authority to set aside or amend the judgment or order appealed from, but even those actions can be taken if the Court of Appeals so orders, if the parties agree to it, if a decision on the merits is reached after a preliminary injunction was granted, or as provided by law. In criminal cases in which a claim of appeal has been filed, the trial court also has the power to entertain "a motion for a new trial, for judgment of acquittal, to withdraw a plea, or to correct an invalid sentence." And, in all cases, a trial court has authority to correct defects before the record reaches the Court of Appeals; specifically, "to grant further time to do, properly perform, or correct any act in the trial court or tribunal in connection with the appeal that was omitted or insufficiently done," except for a few things not relevant here.
Nothing in the rule purports to divest the trial court of subject-matter jurisdiction. Indeed, with one exception not germane to this case, the text does not mention the term "jurisdiction" at all. Instead, it describes the areas in which the trial court lacks continuing powers concerning a case that has gone on appeal; in all other matters, the trial court would retain authority to act in the case. While two courts might have concurrent subject-matter jurisdiction over a case, I have not discovered any descriptions of subject-matter jurisdiction that treat the concept as applicable to the different actions a court might take in a given case, such that one court has subject-matter jurisdiction to do some things while another court has subject-matter jurisdiction to do others.
Moreover, some of the powers the rule expressly reserves for a trial court are quite significant and inconsistent with the conclusion that the trial court lacks subject-matter jurisdiction. For example, under MCR 7.208(A)(2), the parties can stipulate to set aside or amend the precise matter that has been appealed. This gives the trial court, by agreement of the parties, the authority to obviate the appeal altogether. It is impossible to square such a power with a lack of subject-matter jurisdiction: how can a court, without that jurisdiction, nonetheless enter an order that essentially disposes of the appeal and perhaps the entire case? Further, these provisions do not distinguish between classes of cases, which is the touchstone of subject-matter jurisdiction. Consider, too, that if a provision like MCR 7.208(A)(2)—which allows a trial court to set aside or amend the judgment or order appealed by stipulation of the parties—did reendow the trial court with subject-matter jurisdiction, it would upend the longstanding rule that subject-matter jurisdiction cannot arise by the parties' consent. In a similar manner, it would be odd to conclude that the Court of Appeals could, by order, reconfer subject-matter jurisdiction on the trial court under either MCR 7.208(A)(1) or (C).
In addition, MCR 7.208(A) applies only if the appeal is by right or leave to appeal is granted, and MCR 7.208(B) seems to operate under the same limitations. There are no restrictions on the trial court's powers when an application for leave to appeal is filed.This is significant because the action at issue in this case occurred while defendant's application for leave to appeal was pending. Even if MCR 7.208 applies to this Court, it would not have restricted the trial court's power, let alone subject-matter jurisdiction, in the present case.
Instead, the restrictions on the trial court's power when the case is before us come from MCR 7.215(F)(1)(a) and MCR 7.305(C)(7)(a). Under the former, the Court of Appeals' judgment is not "effective" until either the time for filing an application in our Court has passed or we have otherwise disposed of the case. This rule speaks only to the effectiveness of the Court of Appeals' judgment, not to the trial court's authority much less to subject-matter jurisdiction. At most, it prevents the trial court and the parties from acting upon the Court of Appeals' judgment pending on appeal here.
MCR 7.305(C)(7)(a) is the more significant restriction, but it, too, falls far short of stripping the trial court of subject-matter jurisdiction during the pendency of the appeal here. When a Court of Appeals judgment remands to the trial court for further proceedings in an appeal by right or on leave granted, MCR 7.305(C)(7)(a) imposes an automatic stay on "proceedings on remand unless the Court of Appeals or the Supreme Court orders otherwise." For any other type of decision by the Court of Appeals that leads to a remand, there is no such stay per MCR 7.305(C)(7)(b). So in a case like the present one, the trial court lacked the authority to resentence pursuant to the Court of Appeals' judgment only because that judgment was not yet effective pending an automatic stay.
These rules do not work to divest the trial court of subject-matter jurisdiction. They say nothing about jurisdiction. Indeed, we only obtain "jurisdiction" of an appeal once we grant leave. Nor do the rules speak to the general class of cases that a circuit court can hear. There is no doubt that the trial court here had the authority to adjudicate the felony at issue and to resentence defendant. The only thing standing in its way when it resentenced defendant was an automatic stay. The need for a stay affirms the trial court's continuing subject-matter jurisdiction over the case—the stay simply stops, temporarily, the trial court from taking actions it would otherwise have the power to take.
III
In reaching the opposite conclusion, the majority heavily relies on its exegesis of People v George. The very need for such an extended treatment to uncover the intended meaning of a judicial opinion casts doubt on whether the opinion truly stands for the rule the majority discovers. In George, this Court stated that "jurisdiction of this case was vested in the Court of Appeals, and thus removed from the circuit court, when the defendant's claim of appeal was filed in the Court of Appeals . . . ." But, contrary to the majority's assertion, we did not suggest that our use of the term "jurisdiction" referred to subject-matter jurisdiction rather than the court's mere legal power or authority to act.
By reading George as applying to subject-matter jurisdiction, the majority today ignores the persuasive reasoning from other states that have concluded trial courts are not divested of subject-matter jurisdiction during an appeal. As the Kentucky Supreme Court has explained, subject-matter jurisdiction goes to the "kind of case" at issue, rather than a court's power to hear a particular case at a particular moment. Consequently, an "appeal does not implicate the relevant inquiry: whether the [trial court] has the authority to hear 'this kind of case.' " Indeed, because subject-matter jurisdiction concerns the general types of cases that can be heard, courts often say that two courts can have concurrent subject-matter jurisdiction over a case, even though the case is only before one of those courts. Having subject-matter jurisdiction means that a court can hear a type of case, not that the court is hearing a particular case falling within that type. Thus, a trial court's action affecting an appeal is simply an improper exercise of its subject-matter jurisdiction.
It is true that many other jurisdictions have labeled the defect here as one of subject-matter jurisdiction. But these courts have not explained how their conclusion is consistent with the view that subject-matter jurisdiction relates to a court's abstract power to adjudicate a class of cases. Rather, these courts assert their holding as a "judge-made doctrine designed to avoid the confusion and waste of time that might flow from putting the same issues before two courts at the same time." In other words, it is based on a judicial policy of efficiency rather than on the determination that a court has been divested by the constitution or other appropriate legal authority of the power to adjudicate a class of cases. In general," 'the principle is not derived from the jurisdictional statutes or from the rules, but is a prudential, or judge-made, doctrine, '" and accordingly," 'should not be employed to defeat its purposes or to induce endless paper shuffling.' " Adopting this rule by judicial decision, as the majority does today, has the effect of carving out an exception to the subject-matter jurisdiction granted to circuit courts by Michigan's Constitution, statutes, and, where applicable, court rules. Given our caselaw establishing that the Constitution and statutes are the sources of subject-matter jurisdiction, it remains an open question whether we have the authority to create that exception.
I also do not believe that the policy behind this divestiture rule requires that the trial court's lack of authority be characterized as a lack of subject-matter jurisdiction. For one thing, applying the rule to require a pro forma resentencing works against the very purpose of the exception, judicial efficiency. More significantly, the chief distinction between a bare lack of authority and a lack of subject-matter jurisdiction is that the latter defect is unwaivable and, in our state at least, can be challenged collaterally. But even when waivable, the trial court's exercise of authority in these circumstances is still an error that can be rectified in the normal course of a direct appeal. It also appears that even those jurisdictions that call this subject-matter jurisdiction do not go much further than this. Instead, the trending rule appears to be that subject-matter jurisdiction defects cannot be challenged on collateral attack. The United States Supreme Court, along with many other courts and the Restatement, generally bar those collateral attacks. Consequently, in these states, a decision that the defect here relates to subject-matter jurisdiction would not have the same far-reaching consequences as it would in Michigan, where parties can raise defects in subject-matter jurisdiction collaterally.
IV
A straightforward application of our precedent and interpretation of our court rules leads to the conclusion that the trial court did not lack subject-matter jurisdiction in this case. This outcome is also consonant with well-reasoned authorities from other states, resting on the longstanding principle that subject-matter jurisdiction involves the types of cases a court can hear and not the jurisdiction of a court in particular cases. The majority does not grapple with these arguments and instead hides behind a labored misconstruction of our precedent. Nothing in our caselaw, however, prevents us from reaching the correct conclusion in this case.
Moreover, Brickwood cited only Griggs v Provident Consumer Disc Co, 459 U.S. 56, 58; 103 S.Ct. 400; 74 L.Ed.2d 225 (1982), which stated, "The filing of a notice of appeal is an event of jurisdictional significance—it confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal." This statement does not purport to distinguish trials and appeals as different classes of cases. If it did, it would be in some tension with the Court's canonical description of appellate jurisdiction in Marbury v Madison, 5 U.S. [1 Cranch] 137, 175; 2 L.Ed. 60 (1803): "It is the essential criterion of appellate jurisdiction, that it revises and corrects the proceedings in a cause already instituted, and does not create that cause." That line does not suggest that an appeal becomes an entirely new type of case. The Court in Griggs very clearly did not say the trial court was divested of subject-matter jurisdiction, but only of "control." See Griggs, 459 U.S. at 52. Consequently, the view of trials and appeals as two separate classes of cases for purposes of subject-matter jurisdiction is not well grounded. Cf. State v Brown, 358 S.C. 382, 387; 596 S.E.2d 39 (2004) (suggesting a distinction between trial and appellate subject-matter jurisdiction: "The failure of a party to comply with the procedural requirements for perfecting an appeal may deprive the court of 'appellate' jurisdiction over the case, but it does not affect the court's subject matter jurisdiction") (cleaned up; emphasis omitted); 4 CJS, Appeal and Error, § 78, p 90 ("An appellate court derives its jurisdiction from the lower court, and can have no greater subject matter . . . jurisdiction than the lower court.") (citations omitted); 15A Wright & Miller, Practice & Procedure, Juris (2d ed, April 2015 supplement), § 3905, p 301 n 6 ("The growing tendency to refer to appeal jurisdiction as involving subject-matter jurisdiction is worrisome. The concerns that allocate authority between trial and appeal courts within a single system are important, but are quite different from the concerns that allocate authority between federal courts and state courts. There is a real risk of artificial and nonfunctional results if the limits on appeal jurisdiction come to be treated in the same way as limits on district-court jurisdiction.").
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