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How to Appeal or Overturn a Conviction in Michigan

A citizen of the State of Michigan, who has been convicted in a state court of a crime and served the entire sentence, can still attack the judgment and overturn the conviction for ultimate exoneration. The Michigan Court Rules expressly provide for this in what is called "post appeal relief."

The title "Postappeal Relief," which covers Michigan Court Rules (MCRs) 6.501 through 6.509, may seem to imply that these rules govern proceedings only available to a defendant that has already appealed a conviction. However, the rules do not limit relief to such defendants expressly, nor is there any case law on that point. The reference in MCR 6.502(g)(2) to discovery of "new evidence" as a ground for a motion for relief from judgment implies no necessity for an appeal as a prerequisite.

Motion to Set Aside of Modify Judgment

Under MCR 6.502, a motion to set aside or modify a judgment must specify all available grounds of which the defendant has or should have knowledge. A motion may seek relief from one judgment only, but multiple convictions from a single trial or guilty plea merge into a single judgment. The motion must be verified or certified per MCR 2.114 as supported in fact and warranted by law or a good faith argument for extension, modification, or reversal of existing law and as filed not for any improper purpose.1

Content of the Motion

Defendant filers should use the two-page form (cc 257) published by the Michigan State Court Administrative Office. If drafted, the motion must follow the cc 257 format and include all content from the defendant's name to whether the defendant requests appointment of counsel.2 Blank forms are available at no charge from the clerk of each court with jurisdiction over felony cases.

The defendant may attach to the motion for relief from judgment any supporting affidavit, document or evidence.3 The court may permit the defendant to amend or supplement the motion at any time; amendment or supplementation is by permission and not by right.

A defendant can file only one motion for relief from judgment. The court must return and not file any subsequent motion for relief from the same judgment, and there is no appeal from an order denying filing of a successive motion unless the defendant can show a retroactive change in law or new evidence discovered after the previous motion.4

How to File a Motion to Set Aside or Modify Judgment

The defendant must file an original and one copy of the motion, which must be filed under the same case number as the conviction and in the court which rendered judgment and imposed sentence. A copy of the motion and notice of its filing must also be served on the prosecuting attorney, who need not respond unless ordered by the court.5

The court assigns the motion to the judge who presided at the defendant's conviction or, if not available, to another judge according to the process for reassignment of cases.6 If it plainly appears that the defendant is not entitled to relief, the court must deny the motion summarily with a concise statement of the reasons for the denial. The court may deny some requests for relief and direct a response from the prosecutor as to others.7

If the court does direct a response, the prosecutor has at least 56 days to respond to the defendant's motion. If the response refers to materials not in the court file, the prosecutor must submit copies with the response. The prosecutor must file the response and one copy with the court and serve one copy on the defendant.8

If the defendant requests appointment of counsel, on a determination of indigence the court may appoint counsel and must appoint counsel for any oral argument or evidentiary hearing on the motion. If the court appoints counsel, it must allow the defendant 56 days to amend or supplement the motion. The court may extend the time if a necessary transcript or record is not available to counsel.9

Summary Denial

After summary denial of a motion under MCR 6.504(B)(2), the defendant may move for reconsideration within 21 days after the clerk serves the denial order. The motion must state concisely why the decision was clearly erroneous and why a different decision must follow from correction of the clear error. A reconsideration motion that presents the same matters already considered will not be granted.10

If the court does not deny the motion summarily per MCR 6.504(B)(2), it may direct the parties to expand the record by any additional materials relevant to the motion. Expansion may be by letters, affidavits, documents, exhibits, and answers under oath to interrogatories propounded by the court. A party submitting materials to expand the record must serve copies on the opposing party, who must have an opportunity to admit or deny the accuracy of correctness of the materials, and the court may require authentication of any material submitted.11


If the court decides that an evidentiary hearing is unnecessary, it may grant an oral argument before ruling on the motion.12 If the court decides that an evidentiary hearing is necessary, it must schedule and conduct the hearing promptly. At the hearing, the rules of evidence other than for privilege do not apply. There must be a verbatim record of the hearing.13

Reasons for Denial

The court may not grant a motion seeking relief from a judgment of conviction and sentence still subject to appeal, alleging grounds for relief previously decided against the defendant unless a retroactive change in the law has undermined the previous decision, or alleging grounds other than jurisdictional defects which defendant could have raised previously unless there was good cause for failure to raise them and actual prejudice supports the request for relief.14

"Actual prejudice" in this rule means that (1) but for the alleged error, the defendant would have had a reasonably likely chance of acquittal or (2) the procedural defect rendered the plea involuntary to a degree of manifest injustice to allow the conviction to stand, or (3) the irregularity was so offensive to sound judicial process that the conviction should not stand regardless of its effect on the outcome of the case.15

Notably, the court may waive the MCR 6.508(D)(3)(a) "good cause" requirement on a finding of "a significant possibility" that the defendant is innocent of the crime. However it rules on the motion, the court must state orally or in writing findings of fact and conclusions of law.16

Appealing a Denied Motion for Relief from Judgment

You can appeal a denial of a motion for relief from judgment, to do so you will need to file an application for leave to appeal to the Court of Appeals under MCR 7.205. The MCR 7.205(G)(3) six-month time limit runs from the date of the ruling.17

Pursuant to MCR 6.509, a trial court appointment of counsel for the defendant authorizes the attorney to represent the defendant in an application for leave to appeal. If the appellate court grants the defendant's application for leave to appeal and the prosecutor has not filed a response to the application, the prosecutor must file a brief within 56 days after an order directing a response.18

The Michigan Court of Appeals says it "review[s] a trial court's decision on a motion for relief from judgment for an abuse of discretion and its findings of facts supporting its decision for clear error. A trial court abuses its discretion when its decision falls outside the range of reasonable and principled outcomes or makes an error of law. The interpretation of a court rule is a question of law that is reviewed de novo.

"The interpretation of a court rule is governed by the principles of statutory construction. The goal of court-rule interpretation is to give effect to the intent of the Supreme Court, the author of the rules. We begin with the language of the court rule. If the language is clear and unambiguous, further interpretation is neither required nor permitted; the rule must be enforced as written. We may not read into an unambiguous court rule a provision not included by the Supreme Court."19

Find more legal articles in our articles database.

1MCR 6.502(A)
2MCR 6.502(C)(1–15)
3MCR 6.502(E)
4MCR 6.502(G)
5MCR 6.503(A)
6MCR 6.504 (A)
7MCR 6.504(B)(2),(4)
8MCR 6.506
9MCR 6.505
10MCR 6.504(B)(3)
11MCR 6.507
12MCR 6.508(B)
13MCR 6.508(C)
14MCR 6.508(D)(1–3)
15MCR 6.508(D)(3)(b)(i–iii)
16MCR 6.508(E)
17MCR 6.509(A)
18MCR 6.509(C)
19People v Swain, 794 NW2d 92, 103 (MI App 2010)

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