Rule 33 New Trial

Advisory Commission Comment.

It is important to note that a motion for a new trial must be filed within thirty days of the date the order of sentence is entered, without regard to when judgment is entered upon the verdict. This time period applies whether or not any other motion or petition is filed.

Some attorneys seek to "reserve the right to amend" a motion for a new trial, and subsequently file such amendments without a court order permitting it. Clearly the philosophy of the rule is to permit timely amendments, and for that reason the rule does not close that time frame until the motion is heard. However, the fact that the trial judge "shall allow amendments liberally" does not mean that the judge shall allow all such amendments, and counsel must not make a regular practice of filing only a skeletal motion with the intention of bringing all of their substantive grounds in an amendment carried to the hearing. The trial judge retains the power to deny amendments, and strong consideration should be given to whether the new ground being raised was promptly brought to the court's attention.

Affidavits provide a method for resolving factual issues, if the trial judge is satisfied that they adequately serve the purpose. The judge is not required to believe an incredible affidavit and may always require an evidentiary hearing with witnesses.

Under subdivision (e), neither the filing nor the denial of a motion for a new trial waives the right to make a motion in arrest of judgment, so long as it is filed within thirty days of verdict.

Rule 33(d) changes the holdings in State v. Johnson, 692 S.W.2d 412 (Tenn. 1985), and State v. Adkins, 786 S.W.2d 642 (Tenn. 1990), which had abolished the thirteenth juror rule in criminal cases. One should distinguish a new trial granted because the verdict is against the weight of the evidence from a granted motion for judgment of acquittal under Tenn. R. Crim. P. 29(b) for insufficiency of evidence to convict. In the latter situation, retrying the defendant would result in double jeopardy, while in the former situation it would not. See Tibbs v. Florida, 457 U.S. 31 (1982).

The second sentence of Rule 33(d) requires that upon request a different judge preside at retrial if the original judge granted a new trial as thirteenth juror.