I have previously sought to take the position that because errors occurring at the trial are considered waived (Gossett, 282 S.W.2d 59), that it is not proper to file a "motion for new trial" after the court grants a motion to revoke community supervision (and imposes sentence). I have suggested that while the defendant may properly ask for a rehearing or reconsideration (that would restore him to the status immediately before the revocation hearing), the court would have no authority to grant a "new trial" as defined in Rule 21.1. Nevertheless, numerous cases speak about motions for new trial being filed after a revocation, and at least one case seems to have treated such a motion as extending the time for filing a notice of appeal under Rule 26.2(a)(2). Martinez, 130 S.W.3d at 97. Is that a correct interpretation of the rule if the motion for new trial is a "nullity"? Cf. Garcia, 29 S.W.3d at 900-01. The motion in question reads as follows: "The verdict in this cause is contrary to the law and the evidence. Wherefore, Defendant prays that the Court set aside the judgment of conviction and order a new trial on the merits." Sentence was pronounced on May 19. Can a timely notice of appeal still be filed? Would you raise this issue and try to get the appeal dismissed? The last time I dealt with this problem it merely resulted in an out-of-time appeal anyway. I would not want to needlessly accuse defense counsel of incompetence, but it appears to me Rule 26.2(a)(2) would never apply to an appeal under 42.12 sec. 23(b).

Well, if no one else has dealt with this issue, has anyone else ever wondered about the effect of a motion for new trial on the appellate timetable in a revocation appeal? Or I guess I should ask: anyone aware of a court granting a new trial at that stage of the proceedings, and if so how did you respond to that? Surely somebody has some opinions on this topic. Cases like Barnett, 76 S.W.3d at 740 certainly hold a motion for new trial is timely under Rule 21.4(a) because sentence is imposed only after revocation, but I just do not think the courts have recognized that it would be disastrous for the trial courts to actually grant a new trial as much as years after guilt was first adjudicated. Maybe Rule 26.2(a)needs to be amended to provide for an extension of time for the filing of a notice of appeal where the revocation order is not yet final, but it seems to me no rule should countenance a motion for new trial more than thirty days after the trial.

[This message was edited by Martin Peterson on 07-08-04 at .]

Martin, I have looked at the issue a little bit, and I have argued the issue in a motion before, but it did not help me. Most of our new trials are granted in this context, I think. Some defendant pleads true, gets time, threatens defense counsel, who falls on his sword in chambers, Judge grants a new trial, hears whatever the defendant wants heard, and does whatever. Because we are pretty structured here, we in appellate are usually uninvolved in the matter. I believe the clerks and court reporters encourage appellate defense counsel to always file some sort of new trial motion so that they have more time to get the records filed. 99.9%(estimate) of MNT's are denied. I can only think of a couple instances in almost nine years here where a new trial was granted after either a trial before the court or jury trial. I got one of those reversed on appeal. Is this really a problem in your jurisdiction?

No problem, because the so-called "motion for new trial" (until the one i mention above) has always dealt with some problem in connection with the revocation hearing, and not the original trial. Nor is the court going to grant the motion that I speak of. Indeed, there will not even be a hearing held on it.

But, the question persists. Would you argue that any attack on the original proceedings should have been raised at that time? If the court were to grant a true new trial, i.e. set aside the original finding of guilt and permit the defendant to change his plea and demand a jury trial, would you not argue the motion was too late, a nullity, or something along those lines? And if that is true, then how can such a motion truly extend the time for filing a notice of appeal (or as you mention the time for the filing of the record)? In civil practice, other types of post-judgment motions are specifically mentioned in Rule 329b and serve to postpone the appellate timetable. My suggestion is that the criminal side needs a similar rule- particularly with respect to appeals of revocation judgments. I suppose no court is going to come forward and say the right of appeal is lost under these circumstances, but maybe they should. I have no quarrel with allowing more time to file a notice of appeal. I just don't think a motion for "new trial" ought to be the way to accomplsh that goal in a revocation case. Its either a misnomer, or it could represent a real problem for the State if and when some trial judge grants the relief actually requested in the motion.

Yeah, I'd argue that given the opportunity. I misunderstood a little bit. I think the case law on timeliness of appeals forcloses a "new trial" on the plea at the time of the revocation, except in instances of a void judgment. There was a CCA case about this in 2002 or 2003, wasn't there?

Anyone interested in this issue should look for the decision in Fewins, No. 10-04-189-CR. I have requested that the court make an immediate determination concerning its jurisdiction (even before the reporter's record or Appellant's Brief is filed). We shall see what Rule 26.2(a)(2) means in this context. By the way, John, one of the cases I rely upon is Welsh, 108 S.W.3d 921 out of the Dallas court.

The State's Motion to Dismiss in Fewins has been denied without written opinion. Perhaps the issue will be addressed in the opinion on the merits (although I expect an Anders brief to be filed).

Still uncertain whether the merits of the State's challenge to jurisdiction will ever be more fully addressed. But, the Fewins appeal has generated some interesting reading nonetheless. E.g., the following quote from Chief Justice Gray's opinion of September 7:

OBITUARY The concept in the common law known as stare decisis . . . died in this district today after a lengthy illness.