I have a case where the defendant filed a pretrial Motion to Dismiss or For Judgment of Not Guilty (not the proper motion to file but the judge heard argument). The motion stated that the ordinance that the defendant was charged under was vague and therefore unconstitutional. The motion was denied, the case proceeded to jury trial and the defendant was found guilty. The defendant filed a Motion for New Trial which claimed the judge erred in not allowing a witness (defendant's husband) to be designated as an expert and testify to the vagueness of the ordinance and that the judge erred in not giving the jury an instruction on the exceptions to the ordinance, but did not include the constitutional issue presented pretrial. The motion for new trial was denied and now the case is being appealed. The defendant claims that he is appealing the pretrial motion. Can the defendant appeal the pretrial motion even though the motion for new trial was based on different grounds?
The defendant isn't limited to just the grounds raised in a motion for new trial on appeal. He can appeal on issues that happened at trial or on pre-trial issues like the denial of a motion to suppress. He does have to preserve the complaint, but including it in the MNT is only one way of doing so. (And not always even the right way!)
Posts: 1116 | Location: Waxahachie | Registered: December 09, 2004
Thank you for your response. Just a few follow up questions. What would the defendant have had to do to preserve his right to appeal during the pretrial motion if he never adressed the issue at trial? Is the pretrial motion alone sufficient to preserve his right to appeal?