Rule 33 New Trial
Rule Text
(a) In general. — The court on motion of a defendant may grant a new trial to that defendant if required in the interest of justice. If trial was by the court without a jury, the court, on motion of a defendant for a new trial, may vacate the judgment if entered, take additional testimony, and direct the entry of a new judgment.
(b) Any grounds except newly discovered evidence. — A motion for a new trial based on any grounds, except newly discovered evidence, shall be made within 15 days after verdict or finding of guilty or within such further time as the court may fix during the 15 day period; but the time for filing of motion may not be extended to a day more than 30 days from the date the verdict or finding of guilty is returned. The motion shall be determined and a dispositive order entered within 15 days after the motion is filed and if not so entered shall be deemed denied, unless within that period the determination shall be continued by order of the court, but no continuance shall extend the time to a day more than 60 days from the date the verdict or finding of guilty is returned.
(c) Newly discovered evidence. — A motion for a new trial based on the grounds of newly discovered evidence may be made only before or within two years after final judgment but if an appeal is pending, the court may grant the motion only on remand of the case. A motion for new trial based on the ground of newly discovered evidence shall be heard and determined and a dispositive order entered within 30 days after the motion is filed unless, within that time, the determination is continued by order of the court, but no continuance shall extend the time to a day more than 60 days from the date that the original motion was filed. When disposition of a motion for new trial based on newly discovered evidence is made without hearing, the order shall include a statement of the reason for determination without hearing.
Amendment history: Amended and effective November 1, 1993. Compare. — Rule 33, Fed. Rules Cr. Proc. I. GENERAL CONSIDERATION Motion should be made in trial court. — It is both unnecessary and improper to apply in the first instance to the appellate court for leave to make a motion under this rule. The motion should be made, as with any other motion, in the trial court. Sims v. State, 495 P.2d 256, 1972 Wyo. LEXIS 241 (Wyo. 1972). No new-trial motion following guilty plea. — A motion for a new trial will not lie to attack a judgment and sentence based upon a plea of guilty. Garnett v. State, 769 P.2d 371, 1989 Wyo. LEXIS 45 (Wyo. 1989). Defendant alone may move for new trial. — State v. Ginther, 53 Wyo. 17, 77 P.2d 803, 1938 Wyo. LEXIS 4 (Wyo. 1938). No hearing required where record complete. — A court may deny a motion for new trial without a hearing when all that is necessary for disposition is already in the record. Best v. State, 769 P.2d 385, 1989 Wyo. LEXIS 48 (Wyo. 1989). And rule does not require that court make specific findings in its order. — Best v. State, 769 P.2d 385, 1989 Wyo. LEXIS 48 (Wyo. 1989). Untimely motion could not be considered. — Where defendant’s judgment and sentence for delivery of a controlled substance, methamphetamine, were entered on August 23, 1999, and his conviction and sentence were affirmed on October 23, 2000, defendant’s motion for a new trial, filed on April 15, 2002, was untimely and neither the trial court nor the appellate court had jurisdiction to consider the motion. Pearson v. State, 2003 WY 71, 70 P.3d 235, 2003 Wyo. LEXIS 87 (Wyo. 2003), reh’g denied, 2003 Wyo. LEXIS 101 (Wyo. July 1, 2003). Untimeliness barred motion. — Even if a former inmate’s pro se “petition to show cause why judgment was not void” were to be construed as a motion for a new trial, the former inmate was 3 years too late in the request. Taylor v. State, 2003 WY 97, 74 P.3d 1236, 2003 Wyo. LEXIS 118 (Wyo. 2003). Motion based on recanting testimony properly denied. — Trial court exercised sound discretion in denying defendant’s motion for a new trial based on alleged recantations by a child sexual assault victim because the trial judge presided over the trial and was well acquainted with the evidence presented, including the detailed testimony of the victim; the trial judge was in the best position to determine the credibility of the recanting evidence. Garza v. State, 2010 WY 64, 231 P.3d 884, 2010 Wyo. LEXIS 67 (Wyo. 2010).