PEOPLE OF MI V ROSCOE C HUMPHREY JR
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
Plaintiff-Appellee,
v
No. 194990
Oakland Circuit Court
LC No. 88-087725-FC
ROSCOE C. HUMPHREY, Jr.,
Defendant-Appellant.
Before: Young, Jr., P.J., and Michael J. Kelly and Doctoroff, JJ.
MICHAEL J. KELLY, J. (concurring)
I concur in the result reached by the majority per curiam opinion and write only to suggest
that a scoring error which includes, inappropriately, a felony conviction for armed robbery is not
insulated from appellate review by the rule of People v Mitchell, 454 Mich 145; 560 NW2d 600
(1997).
The reason I concur in the majority opinion is that defendant cannot show actual prejudice from
the irregularities that support this claim. Defendant’s December 17, 1969 felony conviction for armed
robbery was not set aside until August 19, 1977 when his delayed motion for new trial was granted in
Detroit Recorder’s Court. No new trial was ever held because defendant had already served the
seven-and-a-half to twenty-year prison sentence which he received for that offense. At the time of
sentencing in this case, the trial court, the prosecutor, and defense counsel all knew of the vacated
felony conviction. Under these circumstances, I believe the failure to raise that issue either at the time of
sentencing or on appeal constitutes harmless error.
Under other circumstances a misscored felony which materially increases the guidelines could
create a false or unsupported factual predicate justifying relief under Mitchell, supra.
/s/ Michael J. Kelly
-1
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