Order                                                                       Michigan Supreme Court
                                                                                  Lansing, Michigan

  June 28, 2010                                                                           Marilyn Kelly,
                                                                                              Chief Justice

  Rehearing No. 563                                                                 Michael F. Cavanagh
                                                                                    Elizabeth A. Weaver
                                                                                     Maura D. Corrigan
                                                                                    Robert P. Young, Jr.
  1 December 2009                                                                   Stephen J. Markman
                                                                                    Diane M. Hathaway,
                                                                                                   Justices


  136648


  PEOPLE OF THE STATE OF MICHIGAN,
            Plaintiff-Appellee,
  v                                                      SC: 136648
                                                         COA: 277012
                                                         Wayne CC: 06-013878-01
  EDWIN DEWAYNE RICHMOND,
             Defendant-Appellant.
  ______________________________________


         On order of the Court, the prosecution’s motion for rehearing of this Court’s
  opinion, 486 Mich 29 (2010), is GRANTED in part. We grant the prosecution’s request
  for clarification about how it may proceed against defendant in light of this Court’s
  decision.

          The prosecution may refile the charges against defendant and, if necessary, file an
  interlocutory appeal to challenge the underlying suppression ruling. As the dissent in
  Richmond explained, the circuit court’s suppression ruling is subject to correction
  because of the intervening change in the law occasioned by our decision in People v
  Keller, 479 Mich 467 (2007). Slip op at 3-4. See also Freeman v DEC Int'l, Inc, 212
  Mich App 34, 38 (1995) (exception to law of the case doctrine); People v Johnson, 191
  Mich App 222, 225 (1991) (exception to collateral estoppel doctrine). This Court’s
  opinion vacates the Court of Appeals’ decision, which corrected the circuit court’s ruling
  in light of Keller, on jurisdictional grounds, not on the merits.

         The prosecutor’s original decision to dismiss the case to seek appellate review
  was, at most, a procedural misstep that did not reach the merits of her case. Moreover,
  we note that the prosecutor has non-frivolous arguments such that she can appropriately
                                                                                                               2

seek to reinstate her case. The comments to MRPC 3.1 define “frivolous” as “an action
taken primarily for the purpose of harassing or maliciously injuring a person.” In light of
the intervening change in the law in Keller, in view of the fact that the prosecutor has
received a unanimous Court of Appeals decision in her favor, and in view of the
clarifying nature of the instant decision, we believe that reasonable arguments remain
available to the prosecutor to explain why reinstatement of charges under these
circumstances is appropriate.
      In all other respects, the motion for rehearing is DENIED.

      CORRIGAN, J. (concurring in part and dissenting in part).

       I would grant the prosecution’s motion for rehearing, and upon rehearing, would
affirm for the reasons stated in my dissenting opinion in People v Richmond, 486 Mich
29, 42 (2010). As the prosecutor suggests in her motion for rehearing, the majority
opinion in Richmond creates an absurd situation: a prosecutor may accept a dismissal of
charges but may not move for such a dismissal without rendering the case “moot.” When
a prosecutor maintains legally cognizable and live interests that can be vindicated only
through appellate review, whether a claim is “moot” does not arbitrarily turn on whether
the prosecutor, rather than the defendant or the trial court, moves to dismiss the case.

       I concur in the Court’s order of clarification, however, because I agree that the
prosecution may proceed in the manner explained in the order. The prosecutor clearly
has a non-frivolous case that she rightfully wishes to pursue. Thus, where double
jeopardy grounds do not bar it, this order preserves a prosecutor’s statutory right of
appeal and ensures that the administration of justice will not be forever thwarted by the
rule created in Richmond.

      KELLY, C.J. and CAVANAGH, J., would deny rehearing.




                         I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
                   foregoing is a true and complete copy of the order entered at the direction of the Court.
                         June 28, 2010                       _________________________________________
                                                                             Clerk
