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STATE OF MICHIGAN
COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant, v KYLE JARRETT, Defendant-Appellee.

UNPUBLISHED March 13, 1998

No. 188476 Oakland Circuit Court LC No. 88-087048-FC

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v KYLE S. JARRETT, Defendant-Appellant. No. 190209 Oakland Circuit Court LC No. 88-087048-FH

Before: MacKenzie, P.J., and Holbrook, Jr. and Saad, JJ. PER CURIAM. In Docket No. 188476, the prosecutor appeals by leave granted from an order granting defendant's motion for relief from judgment. The order granted defendant's request for resentencing on the basis of recent case law "clarifying" the "substantial and compelling" language of MCL 333.7401(4); MSA 14.15(7401)(4). In Docket No. 190209, defendant appeals as of right from the trial court's decision on resentencing to impose the same ten- to thirty-year prison sentences that were imposed originally. We reverse the order granting defendant's motion for relief from judgment, vacate the September 25, 1995 judgment on resentencing, and reinstate defendant's original sentences pursuant to the October 20, 1988 judgment of sentence.

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Defendant's postappeal motion for relief from judgment is reviewable in accordance with subchapter 6.500 of the Michigan Court Rules, addressing postappeal relief. MCR 6.501; People v Kincade (On Remand), 206 Mich App 477, 482; 522 NW2d 880 (1994). Defendant's motion sought resentencing on the ground that a departure below the statutory ten-year minimum sentence, MCL 333.7401(2)(a)(ii); MSA 14.15(7401)(2)(a)(ii),1 was warranted for substantial and compelling reasons. However, because this very issue had been decided against defendant in a previous appeal, 2 to be entitled to relief defendant was required to establish "that a retroactive change in the law has undermined the prior decision." MCR 6.508(D)(2). Assuming, without deciding, that the decisions in People v Downey, 183 Mich App 405; 454 NW2d 235 (1990); People v Krause, 185 Mich App 353, 358-359; 460 NW2d 900 (1990); People v Troncoso, 187 Mich App 567, 577; 468 NW2d 287 (1991); People v Windall Hill, 192 Mich App 102; 480 NW2d 913 (1991); and People v Fields, 448 Mich 58; 528 NW2d 176 (1995) [hereafter the "subsequent decisions"] can be viewed as producing a retroactive change in the law with respect to the scope of departure permitted under

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