I. DISPOSITION OF APPEALS

216

Rule 39: Rehearing.

(a) On Petition; Grounds.  Rehearing may be granted by the Supreme Court, Court of Appeals, or Court of Criminal Appeals on its own motion or on petition of a party. In determining whether to grant a rehearing, the following, while neither controlling nor fully measuring the court's discretion, indicate the character of reasons that will be considered: (1) the court's opinion incorrectly states the material facts established by the evidence and set forth in the record; (2) the court's opinion is in conflict with a statute, prior decision, or other principle of law; (3) the court's opinion overlooks or misapprehends a material fact or proposition of law; and (4) the court's opinion relies upon matters of fact or law upon which the parties have not been heard and that are open to reasonable dispute. A rehearing will not be granted to permit reargument of matters fully argued.

(b) Time; Content; Length.  A petition for rehearing must be filed with the clerk of the appellate court within 10 days after entry of judgment unless on motion the time is shortened or enlarged by the court or a judge thereof. Motions for extending time to file petitions for rehearing will be allowed only in extreme and unavoidable circumstances. The petition shall set forth the reasons the appellate court should reconsider, with proper references to the particular portions of the opinion, record or briefs relied upon. Except by permission of the court or a judge thereof, the petition shall not exceed 15 pages.

(c) Number of Copies; Service.  A sufficient number of copies of each petition shall be filed with the clerk of the appellate court to provide the clerk and each judge of the appellate court with one copy, and one copy shall be served on each party in the manner provided in Rule 20 for the service of papers unless the appellate court shall by order direct the filing or service of a greater or lesser number.

(d) Answer; Oral Argument.  No answer to the petition will be permitted unless requested by the court, but no action will be taken except to grant or deny rehearing. Oral argument will be permitted only if ordered by the court on its own motion.

(e) Action on the Petition; Subsequent Proceedings.  Rehearing will be granted if a majority of the members of the appellate court are satisfied rehearing is appropriate. If a petition is granted, the appellate court shall make such order as to reargument or resubmission as is deemed proper under the circumstances of the particular case.

(f) Limitation on Consecutive Petitions.  When the Court of Appeals or the Court of Criminal Appeals has acted upon a petition for rehearing, no further petitions for rehearing shall be filed in that court. No second petition for rehearing shall be filed in the Supreme Court except upon motion and leave granted by the court or a judge thereof.

[As amended by order effective July 1, 1996.]

Advisory Commission Comments.

Subdivision (a) states that a rehearing is not granted to permit reargument of matters already fully argued. Instead, the petition to rehear, though granted solely in the discretion of the appellate court, will generally lie only in those instances specified in subdivision (a).

Subdivision (d) provides that no answer to the petition will be permitted, but that no action will be taken except to grant or deny rehearing. Rehearing will be granted only if a majority of the appellate court concludes that a rehearing is appropriate. If rehearing is granted the appellate court must make such order as to reargument or resubmission as is deemed appropriate.

Subdivision (f) provides that only one petition for rehearing will ordinarily be entertained. A second petition for rehearing by any party in the Supreme Court may be submitted only upon motion and leave granted by that court or a judge thereof.

Advisory Commission Comments [1993].

The Supreme Court generally disfavors petitions to rehear following denials of applications for permission to appeal.

Advisory Commission Comments [1996].

The amendment to Rule 39(f) makes clear that one cannot file multiple petitions to rehear.

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