
    PEOPLE v POSBY
    Docket No. 111619.
    Decided September 15, 1998.
    On application by the people for leave to appeal, the Supreme Court, in lieu of granting leave, vacated the judgment of the Court of Appeals and dismissed the appeal. Rehearing denied post, 1228.
    Chester L. Posby was found guilty, but mentally ill, in the Washtenaw Circuit Court, Kurds T. Wilder, J., of first-degree murder. The Court of Appeals, Cavanagh, P.J., and Jansen, J. (D. E. Holbrook, Jr., J., dissenting), reversed and remanded the case for further proceedings. 227 Mich App 219 (1997) (Docket No. 177992). The people seek leave to appeal.
    In a unanimous memorandum opinion, the Supreme Court held:
    
    Given the first-out rule, MCR 7.215(H), and because the defendant’s death prevents review of the Court of Appeals opinion, the opinion is vacated and the appeal is dismissed.
    
      Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Brian L. Mackie, Prosecuting Attorney, and Lenore M. Ferber, Assistant Prosecuting Attorney, for the people.
    State Appellate Defender (by Richard B. Ginsberg) for the defendant.
   Memorandum Opinion.

In 1994, the defendant was found guilty, but mentally ill, of first-degree murder. Defendant appealed, and the Court of Appeals reversed defendant’s conviction and remanded the case for further proceedings. 227 Mich App 219; 574 NW2d 398 (1997).

The prosecutor has applied to this Court for leave to appeal and defendant has applied for leave to appeal as cross-appellant. However, we are informed that the defendant has died.

Given the first-out rule, MCR 7.215(H), and the fact that the defendant’s death prevents us from reviewing the Court of Appeals two to one opinion, we vacate the opinion and dismiss the application for leave to appeal and the application for leave to appeal as cross-appellant. MCR 7.302(F)(1).

Mallett, C.J., and Brickley, Cavanagh, Boyle, Weaver, Kelly, and Taylor, JJ., concurred.  