PEOPLE OF MI V MARLON SCARBER

Court of Appeals, State of Michigan
ORDER
PEOPLE OF MI V MARLON SCARBER
Docket No. 379714
LC No. 06-003811-02-FC
Adrienne N. Young
Presiding Judge
Michelle M. Rick
Matthew S. Ackerman
Judges
The motion for reconsideration is DENIED. Accepting appellant’s account of the relevant
timeline, dismissal is nevertheless required on jurisdictional grounds. Under the court rules and
administrative orders currently in effect, there is no basis for treating appellant’s delayed application for
leave to appeal as if it had been filed on the date that it was furnished to prison staff for e-filing, as opposed
to the date it was actually submitted to this Court electronically. See MCR 1.109(G)(5)(b) (“A document
submitted electronically is deemed filed with the court when the transmission to the electronic-filing
system is completed and the required filing fees have been paid or waived. . . . Regardless of the date a
filing is accepted by the clerk of the court, the date of filing is the date submitted.”); MCR 1.112 (setting
forth the so-called “prison mailbox” that applies to certain prisoner filings submitted via “mail”). Again
accepting appellant’s account of the relevant timeline, this case presents an illustrative fact pattern in
support of amending the “prison mailbox” rule in MCR 1.112 to encompass pleadings submitted to prison
staff for e-filing. Further, this order does not foreclose any relief that could be afforded to appellant by
the trial court. More to the point, the substance of appellant’s motion, if deemed credible by a trial court,
seems to present “factors outside the defendant’s control” that support restoring appellant’s rights to
appeal under MCR 6.428.
_______________________________
Presiding Judge
Ackerman, J. (concurring in the judgment): I concur in the decision to deny appellant’s motion
for reconsideration. These facts demonstrate that waiting until the last day of a six-month filing period
leaves no margin for ordinary human or institutional error. I therefore do not believe this case
demonstrates any defect in MCR 1.112, even though the jurisdictional result here is harsh. Nor would I

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offer guidance regarding possible relief under MCR 6.428. Any such relief is not before this Court and
would turn on factual and credibility determinations for the trial court in the first instance.

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