This office recently obtained the reversal of a trial court�s grant of a motion for new trial. PDR was refused, mandate issued, COA�s opinion remanded the case �for entry of judgment reflecting the jury�s verdict.�

A hearing on the entry of judgment was had last month in the trial court, at which the defendant argued that this reversal of the prior grant of MNT reset the entire time period for filing post-verdict motions, including MNT and a motion for �resentencing.� Trial court denied those motions, finding that it had lost jurisdiction to grant a MNT or other post verdict motions a long time ago. Judge signed an order merely reinstating the jury�s prior verdict and his prior sentencing. Def. filed a notice of appeal, and we thought the issue of relitigating post-verdict motions was over.

Now, on the 30th day after that hearing, Def. has nevertheless filed another MNT (240 pages long) and a motion for resentencing. The judge has set a hearing for May 13. Many strange things have already occurred in this case and the codefendant�s case, so anything could happen at the hearing.

Has anyone dealt with this situation before? If so, what happened? And does anyone have any pertinent case law on this issue? I have looked extensively, and have not found anything definitive. It seems counterintuitive and just plain ridiculous that that a defendant in this situation should get a second chance at doing his MNT correctly.

Well, the defendant originally got the relief he requested -- a new trial. I presume the State appealed that decision and got it reversed. So, now the case restarts at the point you would have been had the motion for new trial been denied. That leaves the defendant's clock running on time to file a notice of appeal. I wouldn't think he could refile and relitigate a motion for new trial, as the time on that motion has run.

John Bradley
District Attorney
Williamson County, Texas

The sentence was suspended in June of 2002 if we are speaking of the case which I think we are. That is the date spoken of in Rule 21.4(a). If the second order somehow modified the sentence originally set, the defendant might have an argument. But, in your case the second order was superfluous, except to clarify when the period of supervision commenced (as a result of the success of the State's appeal). You might also argue res judicata or even law of the case bars any additional claims to relief under Rule 21. But, if certain issues raised in the first motion for new trial were not reached or adjudicated in 2002, then it seems those must now be considered.

Thanks, guys, for your comments. I filed a written response and argued the reverse of 44.29(a) (that the reversal of the grant of a NT must act as a denial of the MNT), res judicata and the law of the case, essentially what I argued at the March 23 hearing. MNT denied. AGAIN. However, judge is still thinking about whether he can �re-sentence� Defendant. He seems to feel that, because he has jurisdiction over the conditions of community supervision, he can also change the terms of the original sentence.

Back to the drawing board.