VII. JUDGMENT

217

Rule 33: New Trial.

(a) Motion for a New Trial. On its own initiative or on motion of a defendant, the court may grant a new trial as required by law. If trial was by the court without a jury, the court on motion of a defendant for new trial may vacate the judgment if entered, take additional testimony, and direct the entry of a new judgment.

(b) Time for Motion; Amendments. A motion for a new trial shall be in writing or, if made orally in open court, be reduced to writing, within thirty days of the date the order of sentence is entered. The court shall liberally grant motions to amend the motion for new trial until the day of the hearing on the motion for a new trial.

(c) Procedures.

(1) Testimony. The court may allow testimony in open court on issues raised in the motion for a new trial.

(2) Affidavits.

(A) Affidavits in Support of Motion. Affidavits in support of a motion for a new trial may be filed with the motion or an amended motion. The court shall consider any such affidavits as evidence.

(B) Opposing Affidavits. The state shall have ten days after the filing of affidavits within which to file opposing affidavits. This period may be extended for not more than an additional twenty days by the court for good cause or by the parties’ written stipulation. The court shall also consider opposing affidavits as evidence.

(C) Reply Affidavits. The court may permit reply affidavits.

(3) Findings and Conclusions. In ruling on the motion for a new trial, the court–on motion by either party–shall make and state in the record findings of fact and conclusions of law to explain its ruling on any issue not determined by the jury.

(d) New Trial Where Verdict Is Against the Weight of the Evidence. The trial court may grant a new trial following a verdict of guilty if it disagrees with the jury about the weight of the evidence. Upon request of either party, the new trial shall be conducted by a different judge.

(e) Motion in Arrest of Judgment Not Waived. A motion for a new trial is not a waiver of the right to make a motion in arrest of judgment.

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.

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