If a trial court grants a new trial on the issue of attorney's fees for an indigent defendant, and wants only to delete the assessment of attorney's fees, is the proper procedure to set aside his prior judgment and enter a new judgment? Does he have to have a new punishment hearing? We are within 7 days of our 75-day deadline. An appeal has already been filed, and the judge made this decision at the hearing on the motion for new trial. What does that do to the appellate timetable for the appellant?
I think maybe CCP 103.008 gives the court the authority to make this type of change to the judgment without the rigamrole of a new trial.
The only relief I have seen granted is deleting the cost attributable to attorney's fees.
IMO: Rule 21 does not provide a remedy for this type of error. There is no 75 day deadline involved, except possibly for the court to rescind its order. But, it appears the deadline for that may actually be up to 105 days. Watch for decision in State v. Kirk by CCA. State's remedy for the unauthorized order is by appeal. The Mayer remedy will be applied by the appellate court and the original judgment should otherwise be reinstated. I am guessing the defendant then gets 30 days to give notice of appeal from that date.
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